Criminal acts of employees: are nurse managers legally responsible?

Nurses and managers should be aware of a recent High Court of Australia decision concerning liability for the criminal acts of an employee.

Vicarious liability is the legal notion of a relationship between an employer and employee (with some exceptions) whereby legal liability attaches to the employer for the negligent actions of employees.

The standard of care owed by such an employee fluctuates depending on a number of factors. Where an employed nurse, for example, is responsible for undertaking tasks of an intimate nature and/or involving vulnerable patients, then the standard of care and consequent (supervisory) responsibility of a nurse manager is heightened.

While the recent High Court decision related to an education setting, it still has significance for health services and nurse managers. The judgement outlines the responsibility of employers where employees are placed in positions of trust, intimacy, isolation or work essentially unsupervised. In such circumstances, the court extended vicarious liability for the criminal acts committed by such employees.

The court’s reasoning was that the employer (nurse manager) may place or assign their employee (nurse) in circumstances that “facilitate” them to “influence” the undertaking of a criminal offence. The facts of the case were that the plaintiff, as a 12-year-old boy at an exclusive private college in 1962, was sexually abused by a boarding housemaster, who was employed by the college, over an eight-month period. The plaintiff alleged the defendant (college) breached its duty of care to the plaintiff and was found vicariously liable for the criminal conduct (sexual assault) of the employee (housemaster).

The High Court considered the correct test for vicarious liability required a “fair and just” relationship between the wrongful (criminal) act and employment.

The majority of the High Court stated: “[The] role that the employer has assigned to the employee and the position in which the employee is placed vis-a-vis the victim, in determining whether the apparent performance of such a role may be said to give the “occasion” for the wrongful act, particular features may be taken into account … include[ing] authority, power, trust, control and the ability to achieve intimacy with the victim.”

These “particular features” are of significant relevance to the nursing profession. They are features of employment in many nursing roles. As a prior court stated in examining a sexual relationship between a medical practitioner and a patient (analogous to a nurse/patient relationship), in such a relationship:

• The [nurse] is in a unique position regarding physical and emotional proximity. Patients are expected to disrobe to allow [nurses] to examine and care for them.
• The [nurse]/patient relationship is not one of equality. The patient is generally in a vulnerable position and exploitation by the [nurse] is an abuse of power.
• The community expectation of the [nursing] profession is one of utmost integrity.
• Personal involvement with the patient will often lead to clouding of judgement.
• The [nurse]/patient relationship transcends social values, and no standard other than the highest can be acceptable. A [nurse] making sexual advances to or engaging in sexual acts with a patient is wrong, even if the patient believes this to be acceptable at the time.

Accordingly, any nurse manager/employer who employs a nurse in a position involving features of authority, power, trust and control needs to consider their potential vicarious liability arising from any (employee nurse’s) criminal actions.

Recently in the UK, a case considered the engagement of a medical practitioner to undertake employment pre-health checks for a bank. During the health checks, the practitioner sexually assaulted many female applicants. The bank denied liability, saying the medial practitioner was not a “direct” employee of the bank but a third party.

The court rejected this. The court held that the nature of the compulsion of the potential employees to undertake (legitimately) the health checks, the direct contractual relationship between the bank and the medical practitioner, and importantly, the knowledge (presumed or otherwise) of the bank of the independence, isolation in undertaking the required duties and the vulnerability of potential employees attached liability to the bank. This case, while not yet adopted in Australia, is a warning that means that while nurse managers may not ‘directly’ employ other nurses, they may in such circumstances of isolation and intimacy (in the future) be held liable/accountable.

It is not too difficult to imagine situations where nurse managers engage the services of an independent nurse (not as an employee) or agency to undertake health checks or assessments and a criminal act is committed by the aforementioned. This case potentially extends (if applied in the future) liability in such circumstances.

Of course, this is an ongoing liability for as long as the nurse works in such an environment. Hence, nurse managers need to have in place policies and procedures that continue to address and monitor the nurse’s conduct and behaviour. Background and pre-employment checks of potential nurse employees for criminal and inappropriate past behaviour is not the end of a nurse manager’s responsibility in such situations.

Scott Trueman is a lecturer in the School of Nursing, Midwifery and Nutrition at James Cook University.

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