Duty of care in professional conduct investigations — definition, scope and consequences

During a professional conduct investigation, investigators must be mindful of any duty of care that they owe to the individual being investigated and others involved in the case such as witnesses — many of whom may be vulnerable individuals. 

Here, Matt Harrison explores what a duty of care is, its scope and the potential consequences when investigators fail to comply.

What is a duty of care?

Generally speaking, a duty of care refers to the circumstances and relationships that give rise to an obligation on an individual to take proper care to avoid causing some form of foreseeable harm to another. 

From a legal perspective, there’s a long-established test decided in the case of Caparo Industries plc v Dickman that’s used to decide whether a duty of care arises. The test contains three limbs that each must be satisfied in order to establish a legal duty of care.

1. Is it reasonably foreseeable that the damage would occur?
2. Is there sufficient proximity between the parties? This doesn’t need to be physical proximity — merely the existence of a sufficiently close relationship.
3. In the circumstances, is it fair, just and reasonable for the court to impose a duty of care?

Who do investigators owe a duty to?

During the course of an investigation, it’s possible that a duty of care arises for any involved party. This may be the person who’s the subject of the investigation itself or any potential victims, witnesses and other third parties. 

If the investigation involves children, safeguarding them from harm is a primary concern. This is emphasised in the Government’s 2023 report on keeping children safe in education, which highlights the importance of protecting children who are involved in teacher misconduct investigations. 

Whether a duty of care arises in relation to specific individuals in a misconduct investigation will likely depend on the facts of the case — and investigators must be wary of the Caparo test when deciding who they owe a duty to.

The scope of the duty of care

Investigators also have an obligation to conduct a thorough and detailed investigation, leaving no stone unturned as they seek to establish objective facts. It’s easy to envisage a circumstance in which these two duties clash — where investigating sensitive allegations may cause some distress to either the subject of the investigation or other involved parties. Therefore, the nature of any duty of care that arises on the part of an investigator is limited in scope by the objective of the investigation — establishing facts.

Cases that involve particularly vulnerable people will require more careful consideration of the duty of care because the scope for harm is more evident. This balancing act will also depend on the level of involvement that an individual has in the investigation. Clearly, harm caused to a competent witness with no specific vulnerabilities and only limited involvement in a wider investigation is less foreseeable than a person with more direct involvement (like an alleged victim).

This is an example of how the balance shifts and investigators must be aware of this as they plan how to conduct their investigation. In essence, where the risk of harm is greater, more care must be taken to minimise the risk.

What steps can investigators take to comply with a duty of care?

The steps that an investigator can take to comply with a duty of care may depend on the individual to whom they owe the duty and the specific circumstances of the case. 

For example, with an involved person that has particular vulnerabilities, an investigator may need to assess these vulnerabilities and tailor their investigative strategy to reduce the risk of causing them harm. 

Despite this, there are some general strategies that investigators can implement, including:

• Informing the individual as soon as possible of the allegations and explaining the likely course of action.
• Advising the individual to contact their trade union representative or a colleague for support.
• Appointing a named representative to keep the person informed about the progress of the case.
• Providing access to counselling or medical advice where appropriate.

It’s important that investigators carry out their own risk assessment and implement the steps that are most appropriate for the specific individual, their role in the case and the circumstances of the case more generally.

Consequences of a failure to comply

The consequences of failing to comply with a duty of care may include serious legal ramifications for an investigator. That’s why it’s essential for investigators to consider the above steps and implement measured (where appropriate) to minimise the risk of harm during the course of the investigation.

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