Standard 3: Duty of care

Amara Duty of care. I hear this phrase about ten times a week, and almost always as a reason to stop somebody doing something they want to do.

Nadia Which is close to the opposite of what it means. So let us straighten it out. A duty of care is a legal obligation to take reasonable care to avoid acts, or omissions, that you could reasonably foresee would be likely to harm someone.

Amara Say more about omissions.

Nadia That is where most breaches actually live. Not reporting a bruise. Not passing on that somebody has not eaten for two days. Not recording a fall you watched happen. Every one of those is a breach of duty of care on its own, and none of them involved doing anything.

Amara And what is the standard I am judged against? Because I am not a nurse.

Nadia What a reasonable worker with your training, in your circumstances, would have done. Not the best worker in the country. And not what looks obvious afterwards with hindsight, which is the unfair one people fear.

Amara That sounds fair, actually.

Nadia It is fair. It is also demanding, because it assumes you know what your own training covered. Which is another reason not to sit quietly through a session you did not follow.

Amara Right. Now the one I want to push you on. Mr Davies has capacity, he drinks, he smokes, he has refused the hospital bed, and he lives at the top of a very steep flight of stairs. Everybody on the team is frightened. What am I supposed to do?

Nadia Legally? He may do all of that.

Amara Even though we can all see how it ends?

Nadia Even then. That is not my opinion, it is section one, subsection four of the Mental Capacity Act 2005. A person is not to be treated as unable to make a decision merely because they make an unwise one. Take that protection away and you have taken it away from yourself too.

Amara So my duty of care just evaporates?

Nadia No, and this is the bit people miss. Your duty is not discharged by overriding him. It is discharged by doing the work. Is he genuinely informed. Have the risks been discussed with him and written down, ideally in his words. Has everything that can be reduced been reduced, so a rail, a lifeline pendant, a different route to the bathroom. And is there a review date.

Amara So it is a process, not a permission slip.

Nadia Exactly, and it has a name. Positive risk taking, or a risk enablement plan. It is what good services do instead of blanket bans. A blanket ban looks safe on paper and is very often unlawful.

Amara What happens when something does go wrong? Because it will.

Nadia Then the duty of candour applies. Regulation 20. If there is a notifiable safety incident, the provider must tell the person face to face and quickly, give the facts as known at that point, explain what will be looked into, apologise, and follow it up in writing.

Amara I have watched people freeze at the apologise part. They think it means admitting fault.

Nadia Then let me say this as plainly as I can, because it stops good people doing the right thing. An apology is not an admission of legal liability. Section two of the Compensation Act 2006 says so in terms. Say sorry.

Amara Last thing. Complaints. Nobody likes them.

Nadia Regulation 16 requires an accessible system that is actually acted on. And inspectors read the complaints log very carefully, because a service with no complaints is almost never a service with no problems. It is usually a service where complaining feels pointless, or risky.

Amara So what do I do when somebody complains to me directly?

Nadia Listen without defending, which is the hard half. Acknowledge it. Do not promise an outcome you cannot control. Record it the same shift, not at the end of the week. And tell the person what happens next and when. Most complaints that escalate did not escalate because of the original problem. They escalated because nobody came back.