Abuse cover from a legal, insurance and risk management perspective – a view from the experts at Markel Insurance

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 disorde