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Is it my duty to care?

Roger KlineResearch Fellow Middlesex University

Director, Patients First

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What if?

“I work on a ward. I am concerned about the impact on patients and staff of inadequate staffing levels and inappropriate skill mix. I am reluctant to raise my concerns because the last time I did, colleagues who said they would support me didn’t and I felt I was subsequently bullied by one of the ward managers.”

What would you do?

Patient care and leadership• “the overwhelmingly prevalent

factors were a lack of staff, both in terms of absolute numbers and appropriate skills, and a lack of good leadership”. P.186 Vol 1 2010

• “One thing that worries me more than anything else in the NHS is bullying… permeating the delivery of care in the NHS… caused by the NHS’s “hierarchical” culture” Ian Kennedy 01.04.2009

Hunt on compassion

• . “We must ensure that the compassion that led nurses and healthcare assistants into the profession does not get ground out of them". January 6th 2013

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Healthcare professions are ethical as well as technical occupations

• Staff care about the NHS – the “mum” test• How staff are treated is a key predictor of

patient experience (Michael West)• An ethical approach can (and must) also be

rooted in both the duty of care and the contract of employment

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The standard of the duty of care

• “the standard of the reasonable man or woman”

• “the standard of the ordinary skilled person exercising and professing to have that specialist skill..….. it is well established law that it is sufficient if he exercises the ordinary skill of the ordinary competent man (sic) exercising that particular art”.

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Three duties of care

Employer duty of care to patients

and public

Employer duty of care to staff

Staff duty of care to patients and

each other

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Staff duty of care requires staff to:• keep their knowledge and skills up to date• provide a service of no less a quality than that to be expected

based on the skills, responsibilities, and range of activities within their particular trade or profession

• know what must be done to ensure that the service is provided safely

• keep accurate and contemporaneous records of their work• not delegate work, or accept delegated work, unless it is clear that

the person to whom the work is delegated is competent to carry out the work concerned in a safe and appropriately skilled manner

• protect confidential information except where the wider duty of care or the public interest might justify disclosure

• draw to the attention of appropriate persons any concerns that they are not able to meet those standards

NHS staff survey indicators

• 29% staff fear the consequences of raising patient safety concerns,

• 23% report harassment, bullying or abuse from managers, team leaders or other colleagues over the previous 12 months.

• 55% would feel confident that their organisation would address their concerns

• Only 6.6% student nurses felt there were “no barriers to raising concerns on my placement” (NT 2013)

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The staff contract of employment and the duty of care

Contract of employment

Implied terms including the duty of

care and professional Code of

conduct

Employment documents including written statement of

particularsStatutory rights and

duties such as whistleblowing,

health and safety, equality

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Statutory duties and rights include:

• Health and safety . As well as general requirements for safe systems of work etc S.7. of HASAWA 1974 requires each employee “to take reasonable care for the health and safety of himself and of others who may be affected by his acts or omissions at work”

• Equality and Human Rights. Employers required to prevent discrimination, promote equality in both employment and services

• Whistleblowing (PIDA)

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NMC Code

• Compliance is an implied term of contract• Personally accountable so must raise concerns• Removal from register = removal from

employment in that profession• Historically used against staff but…………• Midwives, managers and student nurses• Duty of care for non-registered staff?

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If staff breach their duty of care (or Code) they cannot claim…..

• “I was inexperienced or not properly trained”• “I was instructed to do what I did (or didn’t)

do”• “There were insufficient resources (staff with

the right skills, equipment etc) to be able to do the job safely”

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The NHS provider’s duty of care to “patients”

Since there are not limitless resources the obligation of the employer is to:

• ensure that what is actually done is done safely and appropriately

• make clear what cannot be done, or at least be done safely

• ensure the patient is treated with the appropriate urgency

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What NHS providers must do when faced with concerns

• demonstrate that appropriate priorities are chosen within available resources;

• comply with its statutory duties in respect of equality, human rights, health and safety etc

• ensure that those providing care are able to practise safely and carry out their duty of care (and that of the employer) to each patient

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What if a management instruction conflicts with the duty of care?

Duty of care

Management instruction or expectation

Statut

ory

dutie

s and

rights

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Managers responsibilities as:• employees – to follow lawful and reasonable instructions,

exercising skill and care in their work, and exercising a duty of care to themselves and colleagues

• managers - with a duty of care towards staff they manage both as individuals and on behalf of the employer

• manager and/or a professional - with a duty of care to patients and the wider public both individually and behalf of the employer

• (possibly) a registered professional required to comply with their Code of Conduct. A manager who is also a healthcare professional is required to continue to comply with their Code of Conduct for as long as they are on the professional Register, whether they are practicing of not.

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Draft new NMC Code: leadership 9. You must investigate and act to address concerns raised

to you, whether raised by people in your care, members of the public or staff that you have managerial responsibility for (including those on our register or regulated by another healthcare professional regulator).

10. Those with management or leadership responsibilities must ensure that those they are responsible for are: enabled and supported to comply with the Code at all times; have the knowledge, skills and competence for safe practice; and understand how to raise any concerns linked to potential or actual breaches of the Code

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Draft Code: raising concerns

63. You must act without delay if you believe that you, a colleague or anyone else may be putting someone at risk or working in breach of the Code.

64. You must not obstruct, intimidate or in any way hinder a colleague, person you care for or member of the public who wishes to raise a concern.

65. You must inform someone in authority if you experience problems that prevent you working within the Code or other national standards, taking appropriate action to address the causes of concern if it is within your remit to do so once you become aware of them.

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“2% of mothers treated at the maternity unit in 2008 came from ethnic minorities but 83% of "serious untoward" cases involved ethnic minorities.”

Daily Telegraph 12.09.2011 on Furness General Hospital

BUT13.You must treat people equally and not discriminate in any

way against those in your care. 14. You must challenge discriminatory attitudes or behaviours. 15. You must act as an advocate for those in your care, helping

them to access relevant health and social care, information and support when they request it.

52. You must treat your colleagues fairly and without discrimination, bullying or harassment.

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Three situations

1. urgent situations where there is an immediate risk to patients, staff or the wider public

2. less urgent but no less serious concerns about issues such as excessive workloads, staff shortages, inappropriate delegation of work, unsafe working environment or a culture where raising concerns risks management reprisal

3. planned future changes to services are provided - what, when, where, how and by whom - which might raise concerns about the duty of care and about which management should in any case consult with staff and quite probably with those who use those services

Roger Kline Unite officers presentation 22

What must staff do if concerns exist?

• Gather evidence for concerns• Individuals are personally responsible but

collective raising of concern more effective• Set out concerns in writing with evidence and

raise them with appropriate urgency drawing attention to appropriate protocols, policies, standards and their Code

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Employer response to concerns must:

• conduct a risk assessment• ensure that whatever work is undertaken can be done

safely and to the standard expected of the ordinarily competent professional

• ensure that any delegated work can be safely undertaken

• ensure that staff who are required to assess needs, are not put in a position where they cannot do so, or cannot keep up to date, or maintain contemporaneous records

• confirm response in writing

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What if?

“I work on a ward. I am concerned about the impact on patients and staff of inadequate staffing levels and inappropriate skill mix. I am reluctant to raise my concerns because the last time I did, colleagues who said they would support me didn’t and I felt I was subsequently bullied by one of the ward managers.”

What would you do?

.• The common culture of

caring requires a displacement of a culture of fear with a culture of openness, honesty and transparency, where the only fear is the failure to uphold the fundamental standards and the caring culture.

• Francis1.180

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“Be realistic, demand the impossible”

@rogerklineResearch Fellow

Middlesex University Business School