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  • 20 December 2021
  • 8 min read

What Is Duty Of Care?

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    • Mat Martin
    • Laura Bosworth
    • Richard Gill
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  • 4925
“You will not be expected to be clairvoyant and you will not be expected to be infallible.”

Stuart talks us through Duty Of Care and reminds us of the critical aspects that you should remember.

Topics covered in this article.


Case Study

What Does It All Mean?

Retaining Perspective

Dealing With Your Duty Of Care

Final Thoughts

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If there's one thing that unites almost everyone concerned with health and social care services, it's the fear of being sued.

Otherwise, reasonable and courageous workers are reduced to quivering wrecks at the mere suggestion that they might have done something wrong, the slightest hint that they've might have failed in on neglecting their duty of care.

Duty Of Care is such a preoccupation for work, as it crops up daily in conversation.

And in practice whenever we encounter thorny issues like health and safety, rights and responsibilities, freedom of choice, confidentiality and a host of other topics.

However, not everyone who hears the term understands what it means or indeed where it came from.

On August the 26th, 1932 Lord Atkin delivered a judgment in the House of Lords, thus ending a legal battle that had gone on for four years.

The judgment is what's known as, a binding precedent because with the exception of the Supreme Court, no other UK court has the authority to overrule it.

This is the principle that most duty of care decisions are based upon.

Case Study

So what is this principle or in practices set of principles that's so important, it still affects us today?

But we'll get to that.

First, let me tell you the basic facts of the story.

Mitaliu was a shop worker in Paisley near Glasgow, who one Saturday afternoon, went with a friend to buy an ice cream float at Frank Hughman Geller's cafe, having finished most of her ice cream float.

She discovered the partly decomposed carcass of a slug in the bottom of the bottle that had contained the drink.

The drink had been contaminated.

She was later treated for gastroenteritis, presumably as a result of consuming some of the corpse.

Mrs. Donoghue's next move was to sue the owner of the cafe.

However the cafe owner Mr. Minghella, argued that he'd sold the soft drink in good faith, how was he to know it had a slug in it not to be deterred, Mrs. Donoghue turned her attention to Mr. Stevenson whose company had manufactured and bottled the soft drink in question.

The argument was that Mr. Stevenson, had a duty of care to the people who use these products in the end, however far removed there may be from his bottling and production plant.

Lord Atkin's ruling was that Stevenson was responsible and that, we all have a legal responsibility not to injure our neighbour.

You must take reasonable care to avoid acts or emissions, which you can reasonably foresee are likely to injure your neighbour.

The definition of neighbour used is this, “persons sort of closely and directly affected by my act, that I unreasonably to have them in contemplation, has been sort of effected when I'm directing my mind to the act or emission, which are called into question.”

In other words, we are have a legal duty, a duty of care, to consider the effects of our actions upon other people, who may be affected in health and social care.

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What Does It All Mean?

This basic principle includes following the various rules and legislation surrounding our work, but that's not as scary as it first appears.

If it was, we'd all be sacked, struck off, perhaps even imprisoned, every time Mrs. Jones' long lost half sister suggests we might have done something differently.

Most of us wouldn't last an hour beyond qualifying.

We've all heard the phrase, damned if you do, damned if you don't and this suggests that there's just no way to avoid getting it wrong, but that's just not true.

The word “damned” is the problem, change it for the word “criticized” and we begin to get some proper perspective.

Retaining Perspective

It's true, whatever we do, someone may well criticize us and our actions, in my own field of mental health, my colleagues and I are regularly criticized and threatened with legal action, or even with violence, for refusing to prescribe inappropriate drugs or not forcing a non-detainable person to go into a hospital.

In case you wondered that would be kidnapping and false imprisonment.

The point here is “criticized”, isn't the same as “guilty.”

It's true that patients, relatives, even Mr. Smith, who twitches the curtains across the cul-de-sac can be very critical of us all, but they can't damn us, unless we've really done something wrong.

So, whilst it's always good to listen to criticism, that's part of reflective practice. It's also important to consider the source and the most important source, if you're worried about being damned for poor practice, is the law.

What would the judge or the coroner say?

If you can satisfy them, you really have nothing to worry about.

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Dealing With Your Duty Of Care

Let's look at what that means, and first you cannot be guilty of neglect, if you have no duty of care, that's the first thing a court needs to establish, did you have a duty of care to the aggrieved person?

If a community patient goes to Blackpool and is run over by a truck, that's not your responsibility, unless you have legal grounds to prevent them and reason to believe that you should.

That's why your GP doesn't get sued every time you have an accident, you're their patient, but your day trip to Blackpool, is none of their business.

People with the mental capacity to make their own decisions, have the right to do so.

And you have no grounds to stop them, assuming that they're not in your care and prevented by some other legislation, such as the mental health act.

You're not responsible for other people's actions.

You are responsible for your own actions and circumstances in which you find yourself.

You are expected to be professionally competent in the area you work in.

And, to be honest about it when you're not, patients have a right to be cared for by someone who knows what they're doing.

And if that's not you, don't be there until you're able to perform those tasks appropriately.

You are not expected to be infallible, but you do need to be competent. So, if a patient dies because they've a completely unforeseeable disease process, and you've done all you can to get help as soon as things went awry, you've done all that you reasonably can, whatever the outcome, you have fulfilled your duty of care.

You're only responsible for what you can legally control and influence.

In practice, it means that we all have a duty of care, to the ultimate consumer, but it's not damned if you do and damned if you don't, there is a do and there is a don't.

Final Thoughts

Do all you reasonably can, don't break the law.

You will be held responsible for your own actions and the circumstances, and you will be expected to report your concerns to manage any risks you created.

You'll be expected to be reasonably competent and you'll be expected, to act to prevent reasonably foreseeable problems.

And you will be judged upon the process of your decision-making and behaviours, but you will not be held responsible for someone else's actions.

You will not be expected to be clairvoyant and you will not be expected to be infallible.

Remember, you will be judged upon process the things you did and the things you didn't do, you will not be judged upon outcome.

No matter, how hard we try in Nursing, people still deteriorate and people still die.

The law accepts that, even if sometimes the public does not, and in matters of duty of care, it's the law that matters, because it's the law, that defines that duty.

We all have a duty of care to make sure our practice is safe and reasonable. And if we could do that, we really won't be damned.

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About the author

Stuart first got into care aged 16, volunteering at a senior citizens’ day centre. A period of homelessness whilst looking for work brought him to a YMCA hostel where he first encountered serious mental disorder. Subsequent support worker jobs led him to begin mental health nurse training, qualifying in 1995. Stuart currently works as a Band 6 (Locum) and also devises and delivers training on mental health, social care and some aspects of related legislation.

    • Mat Martin
    • Laura Bosworth
    • Richard Gill
  • 0
  • 4925

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