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Markel Insurance

18 Jul 2019

Abuse cover from a legal, insurance and risk management perspective

Current Position
In recent years, significant steps have been taken to establish and prioritise risk management approach in relation to safeguarding against abuse. However, abuse claims are unfortunately becoming more and more frequent. The term ‘abuse’ encapsulates mental, physical and sexual abuse.

In May 2019 alone, the press reported:
  • The UN Committee Against Torture raised concerns over sexual abuse of children in UK custody;
  • Updates regarding the ongoing IICSA Inquiry. IICSA is looking at institutional failures to protect children who were placed into children’s homes and foster families. This is as part of a wider investigation into child abuse in England and Wales;
  • Whorlton Hall, a private hospital in County Durham which provides therapeutic care for adults with learning difficulties or autism, was subject to an undercover investigation by BBC Panorama. The investigation revealed evidence of abusive treatment of vulnerable patients by staff. There is an ongoing police investigation and Whorlton Hall has now closed.
In this climate, it is important to ensure that abuse cover is purchased which provides expert representation in the event that a claim is brought against a provider.

Representation in this field can take many forms including legal defence, public relations crisis management and risk management consultancy to support safeguarding practices and regulatory dialogue.

In considering what type of insurance to purchase we should first consider limitation.

Limitation
Limitation is the expiry of a relevant prescribed period after which a claim cannot be made. However, it is not a straightforward matter - abuse claims can be made in the civil and/or criminal courts and there is an important distinction. Civil claims are subject to a limitation period and criminal claims are not.

Criminal:
The UK does not impose a limitation period on the prosecution of crimes except for some lesser summary offences in the Magistrates’ Court. Sexual assault, a type of abuse, is usually a serious indictable offence in the Crown Court.

Civil:
A civil claim is a claim for compensation made by the injured person against the person at fault.

Sexual and physical abuse claims are categorised as ‘Personal Injury’ claims. These claims are generally subject to a three year limitation period. Given the high proportion of abuse claims that have been brought in the last 10+ years, limitation has become a serious issue for the courts. Many of these claims involve allegations of abuse that have occurred decades before and therefore in England and Wales, it is a valid defence to a civil claim to raise the expiry of a relevant limitation period and to ask the court to strike out the claim. However, there is judicial discretion available to the civil courts to extend the limitation period indefinitely due to the nature of these types of claims.

When does the limitation period start? The limitation period normally starts from either the date on which the cause of action occurs, or from the date of knowledge of the person who suffered the abuse (if this date is later).

When it comes to minors, the three year period doesn’t start running until the child is 18 years old. The limitation rules are also different for adults who do not have mental capacity.

Time will not start to run against a person who does not have mental capacity if they did not have mental capacity at the date when the injury occurred.

By contrast, time will run against a person who does have mental capacity at the date of the incident but subsequently develops a mental disorder. This is because if the individual has ever had mental capacity at any time since the incident then the limitation period has started to run. Once the limitation period starts it does not stop; any period of capacity means the limitation period has started. The limitation period is never “suspended” once it starts.

When considering whether to extend the period in which a claim can be brought, the civil courts must have considered all of the circumstances of the case, as well as taking into account a list of factors laid down in the Limitation Act: the length of delay in commencing proceedings, the reasons for that delay, the duration of any disability arising after the date of the incident and whether a fair trial can be held. Each case is decided on its own facts and merits.

Against the background of potential historic allegations of a serious nature which could affect both personal and business reputations, ongoing and reliable legal representation and insurance cover which incorporates long-term protection provides both reassurance and specialist support.

Risk managing abuse
In the past, somewhat surprisingly, the prevention of abuse in the care sector has seemingly been a low priority, with very little research being done about how to safeguard those in the care sector against abuse. The chance of abuse occurring can be reduced by working with person-centred values, promoting empowerment and managing the risk. Empowerment refers to allowing people, within reason, to take the lead with their own safety. Some of the most common preventions of abuse can include training and education for team members around the person at risk in order to help them both recognise and respond to abuse should warning signs emerge. Other prevention approaches include identifying those who could be at risk, raising awareness, implementing policies and procedures within the organisation, and legislation and regulations. Additionally, measures such as making sure all workers have undergone a DBS check and obtaining references from previous employers will further safeguard the individuals.

There are many approaches to risk management planning. A risk management plan identifies the risks that can be defined at any point for a business or an individual. The plan evaluates the risks and outlines the mitigation actions. There are broadly three major themes to risk management - risk identification, risk assessment and risk resolution.

To assist you in ensuring you have the most effective plan in place to minimise and mitigate the risk, here are the three themes that have been broken down into six components. The starting point is always risk identification where a business must recognise the possibility that there are risks to be fully considered within their organisation.
 
Risk and Consequences – Identifying the risks that might affect your business, the environment you work in and the number of staff and service users you have.
Probability – What is the likelihood of the risk occurring and where are the weak spots within your business?
Impact – What is the impact to the business if the risk should occur? What is likely to happen if the risk is exposed?
Priority – Consider the priority of risks and develop a hierarchy of risk areas.
Mitigation Response – The vital part of the risk management, where you give an overview of the mitigation steps to eliminate or reduce the risk.
Action plan – Ensure you have a plan in place if an allegation arises, and make sure staff know how to handle such situations and can escalate through the proper channels. Knowing who to report abuse to and when is of utmost importance.
Insurance coverage
Many insurers operating in the care sector offer abuse protection but not all cover is the same and providers need to consider the type of cover available and the terms and conditions which can be applied to ensure they are getting the right protection.

Basis of cover
Claims occurring vs. claims made
A claims occurring policy covers incidents that occur during the period of insurance. As long as it is reported in accordance with policy terms and conditions, it does not matter how far in the future a claim is made.
 
A claims made policy provides cover for claims made and reported during the period of insurance. Claims notified after the policy period has ended will not be covered even if a claim is legitimate.
 
You will notice between the two covers we refer to ‘incident’ and ‘claim’ to describe the mechanism for dealing with abuse under the insurance policy. This is because a claim (arising from an incident of abuse) can arise many years in the future, in particular those involving children or vulnerable people where limitation periods can be complex and varied.
 
Claims arising under the occurrence basis of cover would be covered however far in the future they arise because they are linked to the original ‘incident’, rather than the date the claim is brought.
 
Claims arising under the claims made basis of cover are primarily linked to the date the claim is brought meaning there is a risk that it might not be covered if for example the provider has chosen to move insurers, the insurance company changes its approach or even if the provider ceases to trade and allows their insurance to lapse.
 
It is important to note that a provider with claims-made cover does not necessarily have to always stay with a claims-made insurer. Most insurers will consider providing retrospective cover (to fill the gap) but do so very carefully ensuring that historical risk management policies and procedures were robust, regulatory positioning was consistent (where appropriate) and there are no pending abuse claims.
 
While the basis of cover is crucial to long term protection for providers, consideration should also be given to:
 
– the limit of liability and basis of the cover for the limit itself
– whether an excess is applicable to abuse claims
– adherence and compliance with safeguarding risk management conditions
 
It is also important to consider other areas of cover provision, while Public Liability will likely cover the claim relating to the incident of abuse itself, depending on the circumstances claims could be brought against individual Directors or Trustees if there are allegations surrounding their breach of duty.
 
In addition, commissioners increasingly stipulate the level of cover they require to providers to have to fulfil contractual requirements.

An effective insurance policy will help organisations in the care sector to respond to incidents of abuse. Our expert team have an in-depth knowledge of the sector, having worked extensively with ca­re organisations for over 10 years, so are well-equipped to handle claims of this nature. T

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Next article in series

12 Jul 2019

The Private Sector legislation has landed!