Homes for the elderly : different pathways to establishing civil responsibility

Abstract

Examining the civil responsibilities of the home for the elderly requires an analysis of the way general principles of law are applied to the exceptional circumstances within a Home. This study examines this from different viewpoints. The Home‟s legal duties and delictual responsibilities; its contractual duties; and the interplay between public duties and civil responsibilities of the Home are analysed in order to determine the various pathways to of civil liability of the Home. The opening chapter analyses the contractual relationship of the Home with its residents. Firstly, an examination of a sample contact, used by a private Home is made. This is followed by an analysis of the documents and forms used within the public sector, with the aim of examining whether and to what extent these forms and documents create legal responsibilities for the Home. The second chapter considers the application of tort law to homes for the elderly. The Home‟s general obligation to act as a bonus paterfamilias is examined, followed by a more in-depth analysis of particular duties arising from different sections of the Civil Code. The third chapter delves into the responsibilities of the Home arising from its employer-employee relationships. The Home is an employer, therefore the Civil Code articles relating to culpa eligendo and culpa in vigilando are applicable thereto. The fourth chapter illustrates how public duties enacted in various legal instruments may result in a duty of the Home to make good for damages when these have been caused as a result of its having failed to follow its public duties. The final chapter examines whether or not the Home can be found responsible for the acts of its residents. The chapter firstly focuses on the extent to which the Home is responsible for the damages caused by persons of unsound mind who reside within the Home. Secondly, whether or not the Home may also be responsible for damages caused by residents who are for all other intents and purposes considered to be capable. Finally, in conclusion, the author considers the advantages of having a specific act of legislation regulating all aspects of Homes for the Elderly: but especially with regard to the level of care to be given to the residents.