Who Knows Best, a Law Lord or You?
‘There are no occupations which should be regarded as intrinsically dangerous to mental health.’
Just think about that for a moment. To paraphrase Lord Justice (LJ) Hale, she states all jobs carry the same risk to mental health. What do you think?
In the case of Hatton v Sutherland – a landmark case, as its effects still last today - Lord Justice Hale (Brenda Marjorie Hale, Baroness Hale of Richmond DBE PC FBA, who was a Law Lord until 2009 and who is a former President of the Supreme Court of England and Wales) made a ruling that largely governs how courts regard workplace mental health management, including employer responsibilities and grounds for negligence. LJ Hale said ‘The test (of foreseeability) is the same whatever the employment: there are no occupations which should be regarded as intrinsically dangerous to mental health.’
The ruling is important as it is contributing to confusion about employer responsibilities as they relate to the management of workplace mental health.
Based on various recent studies, it is clear some occupations involve witnessing trauma, which can lead to conditions such as PTSD. Such jobs include nursing, doctors, first responders, military personnel and child protection. Roles like these must surely be considered intrinsically more dangerous to mental health. Mind (2017) state PTSD is prevalent in 4.4% of the population. The Advisory Board (2019) reports that one in four nurses suffers from PTSD because of witnessing trauma first-hand. Nurses appear to be five times more likely to suffer PTSD than the general population. Nurses see people die, they resuscitate people, they stem bleeding and they have end-of-life discussions. Their job and other jobs involving similarly traumatic circumstances seem to be intrinsically dangerous to mental health, and more dangerous to mental health than most other occupations.
The words ‘no occupation should be regarded as intrinsically dangerous to mental health’ might be intended to exclude factors such as workload, management style and even bullying, as these factors are extrinsic and do not relate to the intrinsic tasks involved in performing the actual role. This nuanced argument is understood. However, reflecting on LJ Hale’s judgement, there are two points to consider. What exactly did she mean? And can her proposition be applied in actuality?
Let us first check what LJ Hale means. In the case of nursing, for example, does she mean that the tasks that are intrinsic to the role (witnessing bleeding, breaks, burns, amputation, end-of-life care, dying and death) have no more an effect on the mental state of a nurse than do photocopying and filing on the mental state of a secretary, pipework and soldering on the mental state of a plumber, or traffic lights and pelican crossings on the mental state of a taxi driver? When viewed through today’s eyes, which perhaps have a different focus to those of twenty years ago, this logic seems unconscionable and unacceptable. On what evidence was LJ Hale’s ruling based? Did she actually base her judgement on studies that set out the likely or actual effects upon mental health of each occupation? Were such studies even available at the time of her ruling? Has new evidence emerged since she passed judgement in 2002 that would lead her to change her thinking today? And even if she wouldn’t change her thinking, is her thinking fair and just, in the context of today’s mental health landscape?
And when LJ Hale referred to the intrinsic nature of an occupation, did she mean to suggest the nature of an occupation can be separated from the person performing it, along with any mental health consequences that might accompany the role? Sticking with the example of nursing, a nurse will see lacerations and bleeding. A nurse will see breaks and burns. A nurse will deal with dying and death. A nurse will see trauma, such as amputation. Witnessing such trauma is intrinsic to the nursing role and there is no escape from it. This is, among many other things, the very essence of nursing: repairing trauma. In actuality, the intrinsic nature of some roles cannot be separated from the person performing it, and nor can the psychological effects, whether for legal purposes or some other purpose.
The Advisory Board (2019) is not alone in identifying high rates of poor mental health amongst certain occupations. Akhtar and Aydin (2019) write that the jobs in which people are particularly at risk of suicide and depression are some of the most important occupations in society, such as doctors, childcare workers and first responders. And Forbes et al. (2019) found higher than average rates of PTSD amongst soldiers. Even the most elite special operations soldiers are not immune and may suffer nearly twice the rate of PTSD as conventional army units (Hing et al, 2012). There are numerous reports of higher than usual mental health issues amongst certain occupations. The risk of mental harm has been found through research to vary by occupation, with the occupation being the cause of that increased risk of mental harm, contradicting LJ Hale’s 2002 ruling.
Other nations already believe that some occupations run a greater risk of mental harm. In Australia, health and safety law expressly applies to both physical and mental health. The Australian Government recognises differences in the risk of mental harm posed by certain occupations and compensates state workers suffering from mental harm as a result of their occupation. This suggests the reality is the same in the UK and in Australia – people suffer differing levels of mental harm subject to their occupation – with Australian law recognising these differences in the risk of mental harm, but with UK law not doing so. UK law fails to recognise reality.
So, returning to my opening question, who knows best, a Law Lord or you? In law, we often hear about the ‘reasonable person’. What do you, the reasonable person, think? Do some occupations run the risk of greater mental harm? And if so, isn’t it now time for a review? Surely, it is logical to conclude that just as some occupations carry a greater risk of physical harm, so some occupations carry a greater risk of mental harm.
Employee mental health – arguably more at risk today than ever before - cannot be left to what looks, today, to be the flawed legal logic of twenty years ago. Now is the time to create greater clarity for employers by setting new legal precedents that require employers to reasonably foresee mental harm to employees, and to put in place suitable and sufficient control measures to reduce the risk of mental harm arising from their occupation.
There are many ambiguities and contradictions causing employers confusion about how to manage workplace mental health. LJ Hale’s ruling is one such example. Only by making the sort of change suggested in this article will society properly protect nurses, doctors, first responders, childcare workers, military personnel and others whose occupation is intrinsically more dangerous to their mental health.