Examination of Witnesses (Questions 180-191)
DR JUSTIN
DAVIS-SMITH
AND DEREK
TWINE
10 JANUARY 2006
Q180 David Howarth: One of the arguments
that has been put forward for clause 1 of the Compensation Bill
is that the public—and presumably that includes voluntary
organisations—should be better informed about the way the
law really works and that that in turn would lead to people and
organisations being less risk averse and more realistic. Do you
agree with that view? Do you think it might work?
Derek Twine: As an individual
organisation we would support that not just on an educational
basis but in giving confidence to those volunteers. Firstly, it
would have the immediate impact of displaying to the voluntary
sector confidence and understanding in the situation in which
they find themselves. In organisations which are working with
young people it would give some strong encouragement to the concept
of enabling young people to encounter for themselves at a very
low level, whether it be a Guide camp or a Scout expedition, a
situation which for them feels like a risk and they learn as an
adolescent to assess and to manage that risk and to make a decision
for themselves. They then become part of a community and a society
which is better able to address risk management, far more so than
if undertaken by volunteers who only had to implement legislation
and law based upon risk aversion. So going straight back to clause
1 its existence and application would greatly enhance the situation
immediately and in the long term.
Q181 David Howarth: Could I just
put to you the sceptical view which is that no-one in the outside
word outside these buildings is ever going to hear about section
1 when it becomes a law so it will not make any difference at
all.
Derek Twine: I would equally be
sceptical and say if whatever we did became just the media headlines
then "Ministers crack down on frivolous claims and support
education" expressed in that way may be having a more encouraging
effect on tens of thousands of volunteers than yet again reading
of the egg cartons or the pips in oranges, and the public concept
that it is regulation and frivolous claims which are causing people
to back off from volunteering.
Q182 David Howarth: Of course that
headline is a one-off hit, is it not, and the question is we cannot
have a Compensation Bill every year.
Derek Twine: Absolutely.
Q183 David Howarth: What else could
be done in terms of education or advertising or guidance in the
HSE or something which might bring this more realistic approach
to public attention more often?
Derek Twine: Two issues immediately
come to mind. One is the collaborative approach which I do believe
is emerging in terms of a sensible approach to risk management.
We are hearing what I would generally believe over the past five
years is a bit more of a culture shift and coming together of
the various stakeholders understanding each other's position and
moving therefore to managing risk rather than avoiding all risk.
That is helpful and I believe that is to be encouraged I believe
that this inquiry and subsequently over the coming months various
pieces of campaigning and research will help to bring that about.
I believe the other is in how the courts will be interpreting
and implementing any consequence if there is to be a change coming
from the bill. Tied in with that, reference was made to marketing
and advertising. If that element of an outcome, which is to deal
with the "let me get you a claim quickly fixed" from
marketing is dealt with that in turn will also greatly help.
Mr Davis-Smith: On a very practical
level if I may follow up on that, Volunteering England, as part
of the piece of work we are doing around volunteering and risk,
is to produce a tool kit or good practice guide aimed at volunteering
organisations helping them think through the whole process of
doing proportionate risk assessment and to reassure them that
the process is not as baffling as it might appear to start with.
I think on a very practical level that will have hopefully some
impact.
Q184 Chairman: Do you not have to
be aware of the danger that in the laudable attempt to give you
the signals you want in clause 1 to demonstrate the value of activities
which might be impaired by a (?) attitude to risk, the Government
might in the process create a law which gives rise to cases which
have the opposite effect where an activity is deemed not sufficiently
desirable to justify the risk that the case is all about so the
whole thing could descend into legal arguments that gave you the
wrong signal, and maybe some of these other mechanisms we are
looking at could be more reliable and useful signals for you?
Dr Davis-Smith: We do need to
be careful about going down wholly the legislative route because
if we look at the US/Australian examples, where both countries
have introduced volunteering protection legislation to try and
deal with this issue that we are dealing with today, that legislation
has at best been proved to be of negligible benefit and in some
instances it has been suggested it has been counterproductive
because some organisations have pulled back from their responsibility
to undergo proper risk assessment procedures because they fear
they are immune from prosecution or their volunteers are immune
from prosecution. I think we need to be careful, although I would
not disagree that if the impact of clause 1 is to lead to better
decisions being taken and balancing the public benefit of volunteering
against the duty of care, then I think that is a good first step
but I would not see the legislative approach as the main approach
to dealing with this issue.
Derek Twine: To extend that, Chairman,
I think we are saying that it is a multi-faceted approach which
is required but one which is working with those facets working
in synchrony, it is not that there is one solution and the other
issues are not relevant, and therefore I think it is moving forward
to effect that culture change which is more significant. It is
not just one aspect or one piece of work that is necessary.
Chairman: You mentioned advertising,
Dr Whitehead?
Q185 Dr Whitehead: Dr Davis-Smith,
in your speech, of which you kindly provided us with a copy, you
mentioned the "ubiquitous advertising of claims management
companies". Do you think that has an impact and, if so, how
substantial?
Dr Davis-Smith: I do not know
how substantial but I am pretty sure it has an impact because
nine out of 10 of the volunteering organisations that we surveyed
when we asked them what had given rise to their perception of
a compensation culture told us they believed they were operating
within a compensation culture, despite what the figures are telling
us perhaps to the contrary. When we asked them what were the reasons
underpinning this perception of a compensation culture that was
one of the reasons that they gave. They felt the advertising by
claims farmers was one of the factors that was driving this.
Q186 Dr Whitehead: Other than observing
that that is the case would you have any thoughts on whether that
is good public policy to have such widespread advertising or would
you advocate any change in how that is carried out?
Dr Davis-Smith: It is not my area
of expertise at all but I would say that it seems to me that some
of the advertising that has happened in the past is clearly not
helpful and I would argue has driven this perception of a compensation
culture, and therefore some action does need to taken in terms
of regulating some of the most inappropriate forms of advertising.
Derek Twine: If I could concur
with what Justin has identified and then add that even within
our organisation we hear from individual leaders, our volunteers,
who have experienced claims being brought or even being considered
being brought where the point of initiation of the claim was the
advertising material placed in the hospital's A&E waiting
room at the time when the parent of the injured child was feeling
most vulnerable as opposed to any piece of consideration, and
likewise that is then saying that not only do the leaders feel
fearful of that kind of environment but to extend that in terms
of the place of advertising as well as the terms of advertising.
Chairman: Mr Brokenshire?
Q187 James Brokenshire: You were
talking about existing leaders of the existing organisation. In
my comments to the HSE I was trying to get across the opportunities
lost. Perhaps you could comment on the impact that you perceive
that this current culture is having on recruiting people in and
what that means in terms of the number of people waiting on your
books to become scouts or guides or other members of voluntary
organisations just in a very practical sense?
Derek Twine: In a very practical
sense within our own organisation we have over 30,000 young people
who would like to be scouts on our waiting lists. We do not have
sufficient leaders to provide for cub scout packs or scout troops
for those young people to join. That is 30,000. I put that with
the figure that tells me that we have 70% of our leaders who have
tried their damnedest to recruit other people to be leaders to
open another pack in their group or to provide some more activities
for young people, and those people whom they are approaching identify
that a big factor inhibiting someone putting their hand up and
saying "yes I will volunteer" is the fear of being sued
for compensation in this arena that we are debating today. I do
not pretend that there are not other factors as well but consistently
this is one of the very strong factors and the fact it is coming
back from 70% of them gives me cause for concern as an organisation
and I believe gives the whole sector some concern because we are
denied the opportunity to extend our provision to a wider reach
within the community.
Dr Davis-Smith: Just to add a
national statistic: 15% of people who were not volunteering gave
fear of being sued as a reason for not volunteering.
Derek Twine: I wonder if I could
just make a little clarification of definition here as well because
I think it is important to the environment from which we are coming.
This volunteering that we are talking about being impaired
and severely damaged is volunteering for adults who are prepared
to take responsibility for other people and for their actions
in an engaged way. It is not a quick count of someone who did
something for one hour once a month. I do wish to make that distinction
because there is other data which could be quoted that says society
in the UK has never had it so good for the number of people volunteering.
However, scratch beneath the surface and look at the definition
for various data and to volunteer for an hour or two once a month
is not the same as the kind of volunteering we are looking at
in terms of taking on responsibility for several hours each week
for groups of young people or for groups of vulnerable or sick
people within the community who need care and attention and therefore
I do believe that what we are talking about is the challenge in
that latter category where they feel a sense of on-going and deep
commitment.
Q188 James Brokenshire: Again at
a very practical level has the "compensation culture"
given you reason to advise your scout or cub groups not to do
certain things? For example, I remember from my days in scouts
going camping in the pouring rain and canoeing and mountaineering.
Have you actively advised groups not to do things for fear of
lack of insurance or the risk of some sort of claim arising?
Derek Twine: We have not advised
people not to do something but we have advised them and indeed
required them to follow on how to do it. I believe the approach
which we and I think some of the other organisations as well have
developed has been to take far greater account of sensible risk
assessment and sensible behaviour in the light of those risks
which have been assessed rather than organisationally to seek
to cut out the activity or indeed every element of risk, but that
is us as an organisation. What we have is the delivery of the
experiences in the hands of hundreds and thousands of volunteers
and they are the ones who will interpret what they see in their
local media and among their peers and in advertising.
Q189 James Brokenshire: Do you therefore
perceive that activities at a local level have been curtailed
even though you have not given that specific guidance from on
high that means that young people now are not getting the full
benefit they might have done before?
Derek Twine: Absolutely, and indeed
when I referred earlier to 94% of the respondents to the survey
saying that they experience that there has been a restriction
to the range and nature of activities offered to young people
as a result of fear of litigation and compensation, it is those
very leaders who are in direct interaction with young people who
are telling me and who are telling us here today that that is
the impact. It is a detrimental impact. That is their perception.
Regardless of what a particular claims record might be like, that
is the perception of volunteers who are delivering voluntary
work for the benefit of their local community.
Dr Davis-Smith: One organisation
said to us it is better to do nothing than take a risk. That is
a voluntary organisation. If we are living in a climate of voluntary
organisations moving into that sort of mind-set that really does
cause concern for the future of volunteering and the societal
benefit which we know it can deliver.
Q190 Chairman: I think it is worth
encouraging you to reiterate a point that you made earlier which
quite struck me at the time you made it which is as an organisation,
and admittedly you are a relatively large and well-established
organisation, you do not have any fear about risk management because,
if I understood you correctly, you train for it, you provide programmes
so that people can understand what they have to do in risk management;
it is more around compensation and litigation that you have anxieties.
You gave me the impression that you took it in your stride and
regard it as pretty essential to what you do.
Derek Twine: I am glad that came
across, Chairman. That is absolutely essential to what we do.
If I may also reiterate a point from earlier, it is important
for us as an educational organisation that that comes across in
what we do for adolescent young people as well as what we do for
our adult volunteers who are working with those young people.
It is integral to the very education process.
Q191 Chairman: Thank you very much
indeed and long may you continue the good work you do.
Derek Twine: Thank you, Chairman.
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