There is no doubt that working with people who are frail, older, disabled or ill is a responsible undertaking. This responsibility, at least in some part, arises out of the fact that these people rely on the care providers for many aspects of their wellbeing. In health and social care settings, we often refer to this responsibility as a duty, more specifically as the duty of care. But what does it mean to have a duty of care? How is this measured and against what? And what happens when a care provider fails in the delivery of its duty of care?
What is the duty of care?
The duty of care refers to the obligations which health and social care professionals owe to the people (patients, clients and service users) to whom they are providing care and support because they, the care professional, have agreed to care for them.
The duty of care towards service users arises from a number of inter-related reasons. These include a:
- Legal duty of care.
- Professional duty of care (applies to nurses and doctors etc).
- Contractual duty of care.
- Ethical duty of care.
This feature will concentrate on the legal duty of care as this is what most care providers are concerned with and where our experience lies. It is important to be clear that the other elements of the duty of care are important. For example, nurses can be struck off for breaching their professional duty of care obligations. In addition, it is important here to understand that when someone fails to exercise their duty of care, they are negligent. That is what is meant by clinical and care negligence and is also what this feature seeks to explore.
Legal duty of care
The legal duty of care arises from both civil and criminal law in that any care provider who accepts a duty of care towards someone else can be held liable by law if they breach that duty if they are negligent. A duty of care is said to exist if foreseeable harm can result from an intervention or lack of intervention.
Legally, nurses and carers must provide care of a standard which any other reasonable nurses or carers would also provide; this is called the Bolam test. It is named after a 1957 court case, Bolam v Friern Hospital Management Committee, which established the legal precedent that a professional is not negligent if they act in accordance with a practice accepted as proper by a responsible body of similar professionals. That is to say, ordinary professionals with the same qualifications and experience as the professional whose actions are being questioned, rather than the idealised professional.
In 1997, the House of Lords’ ruling in the Bolitho v City and Hackney Health Authority modified the effect of the Bolam test to include that any defence could not be considered reasonable if the opinion of the body of professionals, or supporting witnesses, was not capable of withstanding logical analysis. That is to say that the care, and therefore any defence provided, must be both reasonable and responsible. This means that if a nurse or carer plans to defend the care they provide on the basis that it is what other nurses or carers do, that defence must stand up to logical analysis and be therefore both reasonable and what any responsible nurse or carer might provide.
It is also worth considering another famous case from 1988 which has shaped how negligence claims are treated, Wilsher v Essex Area Health Authority. This case, in which a junior doctor administered too much oxygen to a premature baby, is important for two reasons. The first reason is that the House of Lords’ ruling established a principle in that a claimant, the person alleging negligence, bears the burden of proof in having to establish causation on the balance of probabilities. This, so-called ‘material increase in risk’ test means that if there are other potential causes for an outcome, for example a pressure ulcer, it is the role of the claimant to prove on the balance of probabilities that the negligence of the professional materially increased the risk of the outcome.
The second reason this case is important is that it established that professionals owe the same duty of care as other professionals of the same status from day one of their practice.
This means nurses and carers must act with same level of competence as someone else with the same training and role from day one. It also means nurses and carers should understand the boundaries of their own competence. This means that if they do not have enough experience and skills to provide the type and level of care a service user needs, they are under an obligation to refer the care of the individual on to someone who does. We often see this in social care when carers refer service users to nursing colleagues for the management of wounds or pressure ulcers, for example.
Ms S was a resident in a care home for people living with a learning disability. As well as her learning disability, Ms S was only partially mobile, requiring the assistance of two staff to transfer her from her bed to a chair and vice versa. One day, a new carer was helping Ms S with her personal care and sat her on the edge of her bed. The carer left Ms S unattended for less than a minute while she opened a window as it was a hot day. Ms S fell from the bed to the floor and broke her hip.
The family of Ms S brought a case for negligence against the home, alleging Ms S should not have been left unattended. The case was settled out of court as the home’s legal team recognised the carer should have recognised the likelihood of Ms S falling and that the carer being new to the role was not a defence.
Key learning points
Being new to care is a not a defence against claims of negligence as people should expect the same standards of safe care from any professionals who share the same title.
Mr A was a resident in a care home as he lived with dementia and was immobile. His ability to swallow food started to decline, leading to him becoming malnourished and dehydrated. This in turn led to him becoming increasingly frail. He was admitted to hospital where he was treated for urosepsis and dehydration. Despite treatment he continued to deteriorate and died.
The court heard evidence that Mr A was at significant risk of death due to his poor nutritional and fluid intake. His Malnutrition Universal Screening Tool (MUST) assessment was found to have not been completed correctly and his fluid and nutrition charts were poorly completed. The court found that his care home documentation was limited and lacked detail.
Key learning points
Record keeping is the cornerstone of caring practice. Risk assessments and assessment charts are important elements of record keeping and can be used to demonstrate that risk has been assessed, required interventions implemented, an individual’s ongoing status monitored, and outcomes evaluated. Failing to do so can be interpreted as a failure in the duty of care.
Record keeping
One of the strongest defences against any claims of negligence is good record keeping; that is records which demonstrate good assessment, planning, care delivery and evaluations of care. While record keeping is not the delivery of care, it is the most used means of proving that care has been assessed, planned and delivered. Failing to maintain records is often regarded as a failure in the duty of care.
In our experience, many of the claims of negligence we see in social care settings are related to the provision of care by providers who have taken on the care of individuals whose needs are greater than their ability to care. We also see negligence in the assessment of care and therefore of planning, which in turn leads to a bad outcome for a service user.
While it is often portrayed as the least useful use of time in care settings, record keeping is the key to both the assessment and planning of care as well as to proving that care was well assessed, planned and undertaken. In a later feature, we will consider some of the aspects of record keeping which social care providers need to consider to avoid successful claims of negligence.
How is the duty of care upheld in your care setting? Leave a comment on this feature or join the conversation to share your thoughts.
Peter Ellis is a nurse and independent health and social care consultant. Dr Mark Sephton is a Director at Anthony Palmer & Associates.
Email: [email protected] X: @Anthony-Palmer-&-Associates