Foreseeable deaths in the Military: Do the Ministry of Defence owe a duty of care in cases of suicide?

It's a well-established common law principal, that employers owe their employees a duty of care to take reasonable care of the health and safety of its employees, so as not to expose them to unnecessary risk. 

This legal duty also extends to the Ministry of Defence to protect all personnel across the tri-services, both regular and reservists.

When the Ministry of Defence, or any commercial employer fails in that duty of care, the outcomes can be disastrous for individuals and families. Catastrophic, preventable accidents may result in life-changing physical injuries, but the law also recognises that employers should be liable for preventable mental harm. 

Pressures facing members of the Armed Forces

Service personnel are often placed in high-pressured environments where they face traumatic incidents, and regardless of societal changes towards mental health stigmas, some continue to struggle with mental health but are condemned as ‘weak’.

As detailed in our recent article, there are cases in which some individuals aren't supported and it's lead to them taking their own life. Families are then left with a lengthy and public investigation by way of an inquest, as well as trying to process their own grief. Some families seek for further redress in bringing a claim against the Ministry of Defence under the Fatal Accidents Act 1976.

Previous cases have demonstrated that employers owe a duty of care to protect their employees from physical but also mental harm. Providing that the key tenets for a standard employer’s liability action are met then families should be entitled to damages.

The threshold for forseeability

The key area of contention, often for defendant employers is whether committing suicide meets the threshold for foreseeability in a claim for negligence, or whether the act of committing suicide breaks the chain of causation, i.e., because the act of suicide is a voluntary act and is therefore outside of the scope of duty of care. 

This argument is unlikely to succeed, particularly in the Armed Forces where depression and mental health illnesses are foreseeable risks. Judges have been clear in identifying that these individuals wouldn't commit these voluntary acts, had systems been in place to protect them or where there have been severe failings or acts that have pushed them to this point.

MoD's suicide prevention strategy

The Ministry of Defence has recently published its ‘Armed Forces Suicide Prevention Strategy and Action Plan’ following an acceptance that there's a “concerning emerging trend” which suggests that the rate of suicides within the Armed Forces is increasing and that “more must be done to address this.”

The framework seeks to provide a strategy within the Armed Forces to allow it to take action to reduce suicide. It has outlined eight focus areas:

• Understand high risk groups within the Armed Forces.
• Educate the Armed Forces about suicide.
• Enable individual resilience and personal support needs.
• Enable safe military environments.
• Enhance organisational management of those at risk.
• Enable access to support those at risk.
• Develop accessible postvention support.
• Improve organisational learning.

The report provides highlights on what the Ministry of Defence is already doing to support the focus areas; for example providing Samaritans military workplace training and providing personnel with 24/7 mental resilience tools.

What are the key failings often outlined? 

Whilst the above is a positive step, the key failings that are often echoed in many Prevention of Future Deaths reports - an order by a coroner summoning its addressee to provide an update on what steps have been taken to prevent future deaths of a similar nature from occurring again - is that the repeated failings are perhaps not encompassed or detailed within this strategy.

One often repeated omission seems to be the failure to update risk assessments and care plans. This was demonstrated in 2020, following the death of an Royal Airforce firefighter trainer, Sgt Paul Hills, who committed suicide on 24 April, 2020. 

He had reported two attempts of suicide shortly before his death, as well as attempts to harm himself. The coroner highlighted that no risk assessments were completed in the transition of in-person to virtual appointments following the Covid-19 pandemic, and how this might have impacted personnel.

In this case, Sgt Hills’ care plan had not been updated since October 2019 and whilst the pandemic was unfolding, the reports made by Sgt Hills weren't shared with his family and no support was offered to them. 

In the same breath, it's understandably difficult for medical staff to communicate with families, particularly if they don't have the consent of those around them. It should perhaps be recognised by those staff members that this refusal to allow communications may be a risk, and enhanced measures should be put in place to protect the patient, but also those around them and any that they could harm collaterally.

Difficulties facing the MoD

There are likely to be cases of military suicide in which individuals aren't reporting deterioration in their mental health, potentially due to the stigma which still resides within the military to a certain extent, or for fear of not wanting their career to be impacted by any entries within their medical records. 

These are difficult cases, because regardless of criticisms that have been made towards the Ministry of Defence, it comes down to whether these deaths are foreseeable and whether there is anything that could have been done by the employer to prevent the outcome. 

It could be suggested that this is where stronger of lines of communication is required, between the individual’s unit and chain of command and the treating medical centre or team.

Help in supporting families and establishing answers

In cases of suicide, Irwin Mitchell provides support and advice to enable families to get the answers they deserve. It seek answers from those responsible in deaths that could have been prevented or where the Ministry of Defence should have stepped in to support personnel. 

Find out more about Irwin Mitchell's work in supporting families following the death of armed forces personnel at our dedicated military claims section.