Chapter 4 - Duty of care

Transcription

1 Chapter 4 - Duty of care When you seek a product or service from a professional person, you would probably make the reasonable assumption that this person was trained, appropriately skilled and competent. But whether the provider of that product or service is professionally qualified in some way, or perhaps holds a degree or other recognised specialist status, the law often intervenes in the relationship between that person and the consumer of whatever service or product is being provided. Most countries have the legal equivalent of what is sometimes called the neighbour principle, in that every person has a responsibility to avoid any acts or omissions that they could (or should) reasonably foresee to be likely to injure a third party in some way. The link with that third party may be direct or indirect. In most cases, the existence of this duty of care is a necessary requirement before there can be any consideration of negligence If that third party would have a reasonable expectation, when receiving a particular product or service, that the provider of that service would act with reasonable skill and care in this delivery, then this is often described as a duty of care owed by the provider to the recipient. In most cases, the existence of this duty of care is a necessary requirement before there can be any consideration of negligence. An extension of the duty of care is the presumption that an appropriate standard of service and care will be delivered. And this is where life gets a little more complicated. Like for like If a patient seeks treatment from you as, for example, a general practitioner, and you make no claim to any special or extra skill or expertise over and above that, then the patient has a right to expect that their treatment will be provided to a standard that would be considered reasonable and appropriate for a general practitioner. If, on the other hand, you claim or imply in some way, directly or indirectly, that you can deliver a standard superior to other general practitioners or commensurate with a specialist in that field, then you may inadvertently have raised the bar for what a patient has a right to expect, in terms of the quality and level of care and treatment that they will receive from you.

2 You are measured against your peers, rather than against some defined (or imagined) level of excellence In contrast, a doctor who is a registered specialist is expected to provide a standard of care that would be considered proper and acceptable by a reasonable body of other specialists working in the same field. In short, you are measured against your peers, rather than against some defined (or imagined) level of excellence. Unless, that is, the law has separately defined any standards with which you must comply in some respect or another. In medicine, there is a rather more benevolent and protective aspect of one s duty of care, both in terms of an expectation that you will always try to do your best for the patient, and also in the principle of do no harm. Patients would not expect healthcare professionals to cut corners or give them bad advice, or act in some way contrary to what would serve the patient s best interest. Standards are a slightly different issue, however, because a patient may (as a perfectly proper expression of the consent process) impose constraints upon the treatment you might have otherwise provided. You might, for example, suggest to the patient that they might be referred to a specialist, and the patient might decline this offer on the grounds that they would prefer to receive the treatment from you. Providing that the treatment is within the limits of your competence, and also that the patient understands (where applicable) that a higher standard of care might be obtained from a specialist, for example, you are still satisfying your duty of care. A patient may (as a perfectly proper expression of the consent process) impose constraints upon the treatment you might have otherwise provided But if you allow a patient to make a choice such as this, in circumstances where the treatment falls beyond your skills, training and experience, and you fail to make sure that the patient understands this, then it would become much more difficult to resist any allegation that you had fallen short in your duty of care. Acts and omissions What you do should always be in accordance with a practice that would be regarded as being reasonable and appropriate, by a responsible body of your peers. Guidelines, protocols and standards documents are produced by many different bodies, ranging from governments and government agencies, employers of various kinds, regulatory bodies (Medical Boards and Medical Councils), colleges and universities, representative associations, specialist groups, private companies (such

3 as healthcare insurers and health funds) and so on. At first sight, the problem for the clinician is that no two sets of guidelines and protocols are likely to be identical. We are all human and sometimes a suboptimal result is achieved for the patient because of a genuine error If a professional person fails to do something significant during a course of treatment (monitoring drug levels, for example) they may leave themselves open to criticism if the omission is viewed as a breach of a duty of care, or is subsequently interpreted as negligence. Doctors who care for their patients do not wilfully omit such things. However, we are all human and sometimes a suboptimal result is achieved for the patient because of a genuine error and/or the patient suffers harm. Remedial treatment may have to be undertaken and/or the patient compensated. Current thinking Keep yourself up-to-date with current thinking, both in terms of scientific and technological advancement, and the correct application of existing clinical knowledge. Similarly, take note of protocols, codes of practice, current guidelines and standards documents. Evidence-based medicine has had a direct influence upon the duty of care of healthcare professionals, but not all evidence is of the same quality, and it is not always possible or easy to interpret different evidence, collected from different sources in different situations, and to apply it to the specific circumstances of an individual patient. The important thing is that you are able to demonstrate that you have done your best to carry out a patient s care and treatment, in a way which complies with widely accepted practice, supported by a reasonable and responsible body of opinion which is evidence based, as far as this is possible. Demonstrate that you have done your best to carry out a patient s care and treatment, in a way which complies with widely accepted practice Different opinions Problems can arise when the approach you are adopting might well be supported by a responsible body of your peers, but not by the overwhelming majority of mainstream scientific and professional opinion. An alternative or minority view, sincerely held with reasonable justification, can still provide a basis for satisfying your duty of care, even if a much larger body of professional opinion would disagree.

4 An alternative or minority view, sincerely held with reasonable justification, can still provide a basis for satisfying your duty of care There are many examples of courts and regulatory bodies all over the world supporting this principle. What you can achieve will inevitably vary in relation to what the patient (or a child s parents) will allow you to do, and the way in which they want you to do it. For this reason, what may be sufficient to discharge your duty of care to a satisfactory standard on one occasion, may not be sufficient on another occasion. Scope The scope of one s duty of care is surprisingly wide and, in the past, breach of duty allegations have included: A failure to take a particular step when carrying out a patient s treatment for example, a failure to carry out appropriate tests and investigations A failure to give the patient appropriate pre-operative or postoperative advice and warnings A failure to exercise a proper degree of skill and care in the provision of the treatment itself, and in other respects A failure to recognise that a particular procedure or course of treatment was beyond your training, skill and competence A failure to explain the nature, purpose, extent, risks and limitations of a particular treatment A failure to recognise the need to refer the patient for advice/treatment from a specialist or from a more experienced colleague Unacceptable delay in taking a particular step when carrying out treatment for example, a delay in diagnosing and treating a particular condition, or in making an appropriate referral A failure to make arrangements to follow up and monitor a patient s condition A failure to make reasonable arrangements to prevent avoidable harm to the patient for example, supervision by an appropriate adult when leaving the hospital after receiving treatment under general anaesthesia or sedation As a self-employed or private practitioner, a failure to ensure the presence of suitable facilities, and suitably trained staff where necessary when providing treatment for a patient A failure to comply with recognised standards and accepted codes of practice, or with regulations and other statutory requirements A failure to take proper account of the specific needs of an individual patient. Potential barriers There might be many clinicians who are prevented from satisfying their duty of care because, for example, they do not own or otherwise control facilities and equipment in the place where they treat a patient.

5 This does not wholly relieve such a clinician from his/her duty of care because it could be argued that if you feel for any reason that you are prevented from satisfying your duty of care to a patient, you should not be treating the patient at all. Take, for example, a situation where you believe that the standard of facilities/equipment, infection control or nursing support, do not allow you to treat a patient safely and/or to an appropriate standard. In discharging your duty of care in these circumstances you might need to consider: Declining to provide the treatment Postponing the treatment until the deficiencies can be remedied Limiting the treatment to that which can be provided safely and to an appropriate standard. You might need to consider postponing the treatment until the deficiencies can be remedied The GMC also places the following professional obligation on doctors: If you have good reason to think that patient safety is or may be seriously compromised by inadequate premises, equipment or other resources, policies or systems, you should put the matter right if that is possible. In all other cases you should draw the matter to the attention of your employing or contracting body. If they do not take adequate action, you should take independent advice on how to take the matter further. Records The clinical records should always be sufficient to demonstrate the steps that have been taken to satisfy one s duty of care, because this is the easiest and surest way to remember the details of events which might have occurred months or years earlier, by the time a complaint or claim is made against you. Summary Falling short in one s duty of care can present a variety of medicolegal challenges, including: Allegations of negligence (although a breach of one s duty of care is not the only consideration if a finding of negligence is to be made) Complaints to a registration body (Medical Board, Medical Council) Complaints to other bodies (for example NHS trust, local commissioning body or the Health Services Ombudsman) Criminal allegations (in extreme cases). One s duty of care is an important professional and ethical responsibility, but in general the expectation is one of reasonableness, not of perfection. This expectation of reasonableness in one s actions applies to standards as well as to specific acts

6 and omissions, although the ethical principle of treating others as one would wish to be treated ourselves is a useful starting point. A professional person s duty of care has an ethical, as well as a legal dimension, and interestingly enough, going back to the first principles of being mindful of the needs and expectations of others (the "neighbour" principle), of striving to provide all aspects of care to the best standards of which you are capable, provides an excellent foundation.