Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 25
Negligence by Omission: The
Role of Professional Curiosity in
Mental Health Care
by Alexandra Penfold, Registered Mental Health Nurse and Expert Witness
(Somek & Associates)
Trigger warning: This article makes reference to self-harm and suicide
Introduction
Undertaking risk assessments as a mental health
professional inherently involves a degree of
uncertainty and ambiguity. Patients may minimise
intent, present with a 昀氀uctuation in mood, or
provide accounts that do not align with observed
behaviour or collateral information from families
or carers. Although the risk of harm cannot be
reliably predicted, this does not diminish the need
for professional curiosity and attentiveness; rather,
it reinforces the importance of actively exploring
uncertainty to ensure risk is assessed as fully and
accurately as possible.
In negligence claims relating to mental health care,
allegations often arise not from what was done but
from what was not done, including questions that
were not asked and risks that were not explored.
Professional curiosity is central to this, as it involves
probing beyond the surface, examining uncertainty,
and drawing together di昀昀erent sources of
information to ensure risk is assessed meaningfully.
This article considers how the presence or absence
of professional curiosity becomes a key factor in
determining whether the standard of care was met.
What is Professional Curiosity?
Professional curiosity refers to the active process
of testing, probing, clarifying and triangulating
information when a patient’s account is incomplete,
contradictory or uncertain (Thackner et al, 2020). In
the context of assessing an individual’s risk of harm
in a mental health setting, such as risk of suicide, it
involves recognising ambiguity in risk assessment
and exploring it rather than accepting surface-level
explanations.
In essence, professional curiosity ensures that
mental health risk assessments are grounded in
active enquiry rather than assumption, leading to a
more complete understanding of the patient’s risk
pro昀椀le. There are also therapeutic bene昀椀ts to this
approach, as research shows that greater emotional
engagement through open-ended questioning and
a genuine interest in the patient’s concerns can
enhance clinical e昀케cacy and contribute to improved
quality of life (Mangena and Chabeli, 2005).
In practice, this includes:
Why This Matters for Solicitors
ɿ
Using open-ended questions to explore a
patient’s thoughts of self-harm or suicide.
ɿ
Exploring ambivalence, instead of relying on
simple denial of any such thoughts.
ɿ
Reconciling inconsistencies between the
patient’s report and collateral information from
family, carers or other professionals.
ɿ
Updating a patient’s risk formulation when
there is a change in presentation, such as a
deterioration in mental state or an increase in
risk factors.
Solicitors need to understand professional curiosity
because it often lies at the heart of omission-based
negligence claims. It is, however, an inherently
nuanced and context-dependent concept within
mental health services. Although frequently
referenced in safeguarding and social care, its
application to mental health risk assessment remains
ambiguous and complex (Taheri and Naseri, 2024).
Consequently, determining whether a lack of
enquiry fell below the standard of care requires
careful consideration of the Bolam principle (Bolam
v Friern Hospital Management Committee [1957]
EXPERT WITNESS JOURNAL
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APRIL 2026
