Duty of Care and Community Health Workers

Abstract

I was contacted by the organisers of this conference and asked to prepare a paper on 'duty of care'. I will attempt to discuss the legal notion of duty of care; when it arises, what it means and then try to apply the concept to the work that I understand is performed by people here. I will also discuss some issues of confidentiality that may at times appear to conflict with the 'duty of care'. Before I go onto that, however, I would like to make some introductory comments that will serve as my 'disclaimer' (so that I do not breach my duty of care to you). The area of 'duty of care' is a complex topic made more so by the fact that the law in this area is predominantly made up by the common law (that is the decisions by judges on a case by case basis). This means that the law is necessarily reactive, it depends on a case being brought before the Court before the judges can say what the law on a particular area is, and further it requires the editors of the law reports to consider the case of sufficient merit to warrant reporting before it becomes widely available. As such anything I say here will be my best guess at a prediction at what the Appeal Courts may say in a given fact situation. The ultimate answer to what the result will be however will depend on the facts of any given case and will only be determined if and when someone here, or someone in your position is, unfortunately, sued.