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Dealing with people with disabilities in social institutions

Notes on the duty of supervision and liability

It is a sensitive topic that is often underestimated: dealing with people with disabilities in social institutions. Here, people with a wide range of needs, abilities and limitations come together, and it is the job of the caregivers to ensure their safety and well-being. But how can caregivers deal with this responsibility? What does the duty of supervision entail and what liability risks need to be considered? The Ecclesia Group offers an insurance solution for this, so that supervisors are properly covered and can pursue their task of integrating and caring for people without worry.

What can give rise to a duty of supervision?

A duty of supervision can have a variety of legal bases. These can be legally established duties of supervision, such as parents having a duty of supervision for their children, contractually assumed duties (protection duties in old people's and nursing homes, child and youth facilities) or duties arising from previous behavior. For example, the person who caused an accident is obliged – insofar as their health allows – to help the injured party. The de facto assumption of a duty of supervision through active behavior must also be considered.

In social institutions, the question of how to carry out a duty of supervision arises primarily in the areas of old people's and nursing homes, children's and youth facilities, kindergartens and schools, as well as care facilities for people with disabilities.

How is the liability of the supervisor regulated?

The duty of supervision basically comprises two obligations: on the one hand, to protect third parties from harm that could be inflicted on them by the person being supervised. On the other hand, to protect the person in need of supervision from harm that may be caused by his or her own behavior or from outside (care obligation).

Scope of supervision

First of all, it should be noted that the legislator has not formulated a specific definition of supervision. Rather, the extent to which the supervisor has to perform his or her duties must be examined in each individual case. It should be noted that the obligation to supervise does not equate to a permanent, direct possibility of intervention in the actions of the person being supervised. The intensity of the supervision depends on the individual situation of the person to be supervised.

When deciding to what extent and with what intensity the supervision of other people is to be carried out, various characteristics must be taken into account, for example:

Age of the person being cared for
Existing rules (e.g. internal work instructions) must be known
Agreements in contracts with parents, etc.
Child protection regulations
Behavior of the person being cared for in the past and prognosis for the future
Ability to understand and learn
Spatial situation/local conditions: What are the dangers?
Peculiarities of the person being cared for
Character and personality of the person being cared for
Their level of development
Their illnesses/impairments
Overall group behavior

The caregivers should carry out “situation-based supervision” and respond to current changes and new situations. It is advisable to start from the weakest part of the overall impression when making an overall assessment, since this is where the greatest potential for danger is likely to lie. At the end, a decision has to be made: What is reasonable for the person being cared for, but also for the staff? Here it is important to make a conscious – and justifiable – decision. Likewise, supervision is only ever necessary and must be carried out to the extent that it enables the person receiving care to develop “normally”. Supervision does not mean permanent control and influence – the keyword here is “self-determined life”, which has also been expressed in the legal regulations with the creation of the client budget.

If damage occurs, how is compensation regulated by law?

The consequences of a breach of duty of supervision are specified in § 832 of the German Civil Code. This means that anyone who, by virtue of the law/contract, is obliged to supervise a person who requires supervision due to minority or due to their mental or physical condition is obliged to compensate for the damage that this person has unlawfully caused to a third party. The obligation to pay compensation does not arise if the accused has fulfilled his duty of supervision or if the damage would have occurred even if proper supervision had been carried out. If the person in charge of supervision culpably violates his obligations, he is personally and unrestrictedly liable to the injured party in accordance with § 832 BGB. In addition, there are also contractual liabilities that may arise, for example, from § 280 I BGB in connection with a home contract (old people's and nursing home).

However, the supervisor can exculpate themselves from the legal provisions for the obligation to pay damages if they can prove that there was no obligation to supervise or that there was an obligation to supervise but that this obligation was not culpably violated. A third case is when the obligation to supervise existed and this obligation was also culpably violated, but the damage would have occurred even if the supervision had been carried out correctly. The damage was therefore unavoidable.

In criminal law, the principle of “innocent until proven guilty” is well known. However, it is not suitable for the issue of breach of duty of supervision. The person responsible for supervision must, in case of doubt, provide compensation to a third party in accordance with § 832 BGB. Only if the supervisor can provide exonerating evidence in the sense of the above-mentioned variants, the obligation is waived. In other words: in case of doubt, the supervisor is liable for all damages to a third party, i.e. “when in doubt, against the defendant”.

Solution: liability insurance

By taking out liability insurance for the supervisor, either as part of an insurance policy for the employer for whom the supervisor works, or through professional liability insurance for the self-employed, the liability risk can be made manageable.

The liability insurer provides cover in a three-stage model:

Examination of the liability issue
Compensation for justified claims
Defense against unjustified claims (if necessary, legal defense)

There is no insurance coverage for intentional acts.

Liability insurance offers both a risk transfer for the legal liability of the institution and for the personal legal liability of the employee. It provides the necessary link between the service to people and the resulting liability risks.

In addition to traditional claims for damages, insurance cover usually includes claims for damages for pain and suffering, loss of earnings, pension claims, and recourse by social insurance agencies, for example due to medical treatment costs incurred.

As your partner at your side, the Ecclesia Group is also at your side with advice and support in the event of a claim. We have decades of expertise to provide targeted support for claims processing tailored to your needs.

A real-life example from a retirement or nursing home

A resident falls down the stairs in a residential home

The case:

A resident with poor eyesight falls down the stairs from the first floor. At the time of the fall, one employee is with a resident in the bathroom, another employee is alone in the kitchen, and another employee is in the common room with eight residents. In this situation, the resident leaves the common room to go to the toilet in the hallway alone, even though she is visually impaired. There are stairs leading directly from the hallway to the ground floor. The resident falls down the stairs and suffers head injuries.

What accusations could be made?

The kitchen assistant had taken the rubbish down and then forgotten to hang the safety net that was provided in front of the stairs. An avoidable mistake.

What claims could be made?

Claims for damages on the part of the injured party
Recourse by the health insurance company for the costs of medical treatment
Claims due to the fact that the incident leads to a higher care level.