Merging orphanages and nursing homes: a new idea, a new area of tort law?

In 2017, the first nursing homes in England and Wales welcomed young orphaned children for a few hours each day. Since 1976, when a nursery school and care home were merged in Tokyo, this practice of intergenerational care has been introduced in several countries, and promoted in 2017 with the UK with the Channel 4 series “Old People’s Home for 4-Year-Olds”. The same year it was released, the intergenerational care home Nightingale House in Wandsworth set up a nursery on the same site as its nursing home.

At first glance, the benefits of these facilities are evident, with increasingly segregated groups profiting from this new-found connection as research shows that it positively affects elderly residents’ mood and physical health. But is the legal background ready to accommodate such a complicated setup, with vulnerable individuals to protect on both sides and trainees having to deal with potentially a new standard of care?

The mutual benefit to care home patients and orphaned children is undeniable as each group can channel warmth and add sentiment to the monotony of institutionalised life. However, it also comes with changes in social work law given that both senior and more junior staff now become responsible for a very delicate mix of two very different demographics. Protecting mental and physical health, both immediately and foreseeably, creates interdependent legal issues as the change in social work signals for a potential new area of torts. This creates a necessary paradox of affection and sterile legal implications.

The main issue is, are all the care workers considered equally in the eyes of the law? Children in orphanages are protected by the European Conventions on the Exercise of Children’s Rights 1996 as well as the United Nations convention and the ECHR. More specifically, Article 20 of the United Nations convention mentions that state duties include ‘placement in suitable institutions for the protection of the child’. This means there is not only a specific benchmark for the organisation of the institution, but also for the skills of its trainees. Everyone is held to the same standard. If an accident or an unforeseeable event were to take place, the defendant would have had to have taken a ‘reasonable degree of care’ and acted as the average trainee would be held not liable. How can the law impose the same standard of care in such a novel situation?

With new power comes new responsibility. The amalgamation of the two groups, even if just for a matter of hours, creates the need for new training for the staff. In legal terms, this generates a new, wider and problematic standard of care. The scope of the duty of care remains to be determined by numerous factors, but in the absence of case law and the conventions protecting distinct interests each time, this standard is, at least for now, an entirely dark area. What’s worse, social work law is already a particularly sensitive legal area where insufficiencies or ambiguities can allow for serious issues. There is hardly any room for relaxing the standard of care to reflect the new, average trainee or the commonly accepted practice.

The two main questions regulated from a new potential duty of care are; is it desirable; and if it is, how generously should it be applied. Given that negligence and torts are dominantly directed by common law, it is possible that - in theory- every innovation, adjustment and even reversal. The standard of care can vary from ‘serious fault’ to ‘reasonable duty’ so it is unknown what could happen. Floodgates for claims unfasten due to uncertainties and prima facie cases, and the courts could have to quickly limit the standard when inundation becomes problematic. There is hardly another way for the common law to establish realistic and substantial precedence but it does mirror a trial-and-error approach which should not compromise the level of care and accountability. There is a degree of necessary balance to be maintained by courts, who must serve the conventions but not make working conditions unreasonably difficult for staff. In such a compound, yet a premature trend, legal consequences are unpredictable.

With the social benefits and the potential legal implication of this relatively experimental movement, the matter becomes one of priorities. Creating a new standard of care at every instance can have dangerous ramifications on the law due to matters of complexity and uncertainty. However, its absence can bring injustice and expose working groups. The social benefits are evident and so lack of legal security could very well be the reason why intergenerational care has not become more widespread.