Withstanding negligence claims: The importance of good governance for charities

Hughes and Ors v Turning Point Scotland [2019] CSOH 42

The family of a man who died in a homelessness facility in Glasgow attempted to sue a project worker and the charitable company who ran the facility.

Francis Hughes was admitted to Turning Point Scotland’s ‘Link Up’ facility in Glasgow, after arriving at the facility seeking help. He had been admitted to the facility previously, and was accompanied by his alcohol support worker. After being assessed by a project worker, he was taken to a bedroom in the facility’s ‘Crisis Residential Unit’ where he was found dead three hours later. The death occurred as a result of an alcoholic detox. Mr Hughes’ family made the claim that the project worker was negligent in admitting him, and sought financial compensation from the charity as a result.

Fair, Just and Reasonable

The judge took into account that this was a highly unusual situation, and approached his decision by considering what would be ‘fair, just and reasonable’ to expect the charity to do. The assessment relied upon whether the defender had assumed responsibility for Mr Hughes’ well-being, and the extent of this responsibility if it existed.

It was decided that the two parties’ exchanges were similar to a contract, which meant that the charity’s responsibilities were contained within an ‘agreed, promised or represented position’. Mr Hughes had signed documents stating that he knew what the service provided and had agreed to the charity’s terms. The project worker had explained the service, and carried out assessments of Mr Hughes in accordance with Turning Point Scotland’s policies and procedures. There was no expectation that the charity would provide detox services comparable to what could be provided by the NHS, and they were not responsible for storing or administering medication.

The trail of documentation led the judge to conclude that the charity did not owe Mr Hughes a ‘general duty of responsibility’. The charity was responsible for providing the services that were explained to and agreed by Mr Hughes. The charity acted within its stated purposes, and had carried out what it agreed to do with reasonable care. The claim was dismissed as a result.

This case serves as a reminder of the importance that robust safeguarding procedures are in place for charities dealing with vulnerable people. If the procedures and policies had not been in place, or if the charity’s purposes were less specific, the judgment may have resulted in considerable financial repercussions for the charity.

Further Comment

It is encouraging that the courts will take into account the stated purposes of a charity and assess its level of responsibility accordingly. This highlights the need for Trustees to review their constitution on a regular basis, and ensure that the charity’s actions remain within their remit.

It may be impossible to anticipate every potential issue that a charity may encounter, particularly when dealing with vulnerable individuals on a daily basis. However, having a tried and tested system of policies and procedures will make it much easier to deal with these situations if they arise.

This article was co-written by Christopher Murphy, with the assistance of summer students Belle Osler and Maria Akunna.

Charities & Third Sector

As a leading adviser to charities, the third sector and social enterprise in Scotland, MacRoberts has a deep understanding of the issues and challenges facing the sector.

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