Duty of Care! This is a term every nurse knows and often uses. I frequently hear it used when a nurse is furious with the actions or perceived failures of another nurse or colleague. It is a statement that indicates that the other nurse is incompetent, negligent or just plain useless because they have failed in their “duty of care”.
Sometimes when the matter is investigated the facts do not support this. There certainly was a problem; because the “bad” nurse had not functioned to the expectations of the angry nurse, had not done what was expected, had overlooked or been entirely unaware of some anticipated responsibility. Yet the accusation couched in legal terms is a very heavy weapon used to justify the angry nurse’s opinion.
This constant refrain “we have a duty of care” or a claim “they failed their duty of care” sometimes seems to be used to show the complaint is valid and justified and of course, to a point, it is a statement of fact. We do have a duty of care. How big is it? How extensive is it? Where does the duty stop or start? When does is take effect and when is the burden lifted?
The term is the first element of four for establishing a claim of negligence. Negligence is when harm has occurred as a direct result of the actions or failure to act of someone who was, in the eyes of the law responsible because they had a duty of care, a responsibility for the person harmed.
In our professional role there is no real wriggle room to avoid the fact we have a duty of care. We are responsible to protect our clients, the public and our colleagues and institution from harm arising from our duties and tasks. We are responsible to demonstrate that capacity by reference to our professional standards. We are required to function within accepted boundaries and protocols.
So yes, of the four elements used to determine if there was negligence the direct and certain fact is the first element of duty of care being present is pretty well a given for any nurse. This is not always the case. In some situations the person claimed to be the cause of the harm is not directly linked, does not in fact have a duty of care. Also if it can be shown that someone else had more direct responsibility than the person accused then no negligence can be attributed.
The origins of the four elements come from a case heard by Lord Aitkin for the Privy Council in 1932. Most of us know the case, it is trotted out by every lecturer teaching about negligence. Donoghue drank contaminated ginger beer manufactured by Stevenson. Legally identifying who was the direct cause of her resulting gastroenteritis was a problem. There were a number of people between her and the product, the retailer and purchaser particularly so the requirement for a contract to be established could not at that time in law, support a claim of negligence.
This case changed the law of negligence and preceded legislation ensuring safe manufacturing processes because as Lord Aitkin stated, “a manufacturer of products, which he sells… to reach the ultimate consumer in the form in which they left him… owes a duty to the consumer to take reasonable care”. Today the term “duty of care” has been extended to any and every situation where there is actual or potential risk to someone so those in a position of responsibility are potentially held to have the duty to take reasonable care to prevent any harm.
Think about that for a minute. Every eventuality, every possibility, someone has to show that they took responsibility to protect and prevent real or imagined negative outcomes. True in law, if it can be shown the harmed person did something that contributed to their own hurt that will shift the responsibility. However in spite of the fact there is a duty of care all that is actually demanded is you take “reasonable care”. Lack of experience, limited skills, difficult situations and conflicting demands can all interfere with the aim for a positive outcome and safe practice. In spite of best intentions and the obligation to meet our duty of care, we may in the eyes of a colleague be seen to be failing.
Some nurses are very black and white in their judgements, particularly when they are frustrated or angry. So condemning a colleague for failing in their duty of care, especially if the failure was innocent or due to ignorance could actually rebound on the accuser. Identifying a knowledge deficit is part of our role. No one, ever, knows everything. In a busy and stressed environment any single one of us can make a mistake or oversight. Should this be identified, there is a duty of care to correct and prevent the harm. Teach and inform where there are knowledge deficits.
That is part of our duty of care, it is how we can all maintain standards and eliminate risks to the public and to our colleagues. The harm caused by using a legal term as a blunt weapon to hit out at a colleague who is driving us nuts is a bad as the harm caused to a patient for doing something incorrectly or failing to do something. It can have lasting consequences.