This article applies to residential care settings in England & Wales.
The last few years have brought far-reaching changes in the way that residential care homes must operate. Whether you work with elderly people, disabled service-users, those with learning disabilities or people suffering from mental disorders the goalposts have moved. This series of articles aims to outline the main changes and what you will need to do to stay within the law.
First we need to say a few words about the concept of ‘duty of care’ itself. In layman’s terms we accept a duty of care when we put ourselves in a position where something is expected of us. If your residents have a right to expect certain standards from you then your duty of care demands that you meet those standards. That’s what the National Care Standards are all about.
http://www.nursing-home-directory.co.uk/care-regulations.htm
This is no surprise to most care providers. They are well aware that there are standards they must meet and that these standards form part of their duty of care. What many providers find confusing is the limit of the expectations placed upon them. In short, they don’t know where to stop in meeting the many demands of service-users.
Duty of care can be summarized in a single sentence:
“Do all that you reasonably can.”
This means that care providers must make reasonable provision according to accepted industry standards but they do not necessarily have to go further. There is nothing to prevent them doing more than this and many providers do just that but there is a limit.
This is the other side of the equation.
“Don’t break the law.”
Sometimes the law prevents us from doing what an individual asks of us. For example if an individual requests that untrained staff accompany them into unacceptably dangerous situations that would be a breach of the Health & Safety at Work Act 1974.
If an individual insists that they are lifted without the use of a hoist that may place the physical health of workers at risk and would likely be of great interest to the Health & Safety Executive.
Duty of care never asks us to break the law. So the trick is in finding the balance.
In order to achieve this it is important for managers and very often for staff members themselves to understand at least the basics of the new legislation as it applies to residential care. It is very common for care workers to feel as though they will be hanged if they do and hanged if they don’t. Whatever you do somebody will criticise you. The criticism may come from residents themselves. It may come from relatives or from other service-users who don’t fully understand the situation as well as you do. Sometimes the press can jump upon a story and publish the most offensive and ultimately unfair accusations about care homes and their managers or staff.
This is always unpleasant but we must get it into perspective. None of these people can hang you. Always remember that you cannot please all of the people all of the time. You will always be criticised by somebody – that’s the nature of residential care.
Everyone thinks that they know your job better than you do – even if they have no training or experience. They had an auntie with dementia once so they know all about it. This is unfair but nonetheless it cannot be helped. You do not have to please these people. You do have to be able to please the judge.
If you can honestly say that the judge or the coroner would be happy with your explanation (although you’ll probably not need to answer to either) then everyone else can go hang. You have acted lawfully and in accordance with your duty. That’s the important thing.
So we have the first few principles already:
- Do all that you reasonably can;
- Don’t break the law;
- Be able to please the judge – if asked.
Many of the recent changes relate to capacity, self-determination and the right to take risks. Therefore it’s important that we make a distinction between two types of risk.
Individual risk: The person has the right to choose unless we can show otherwise.
Organisational risk: The organisation that creates the risk must manage the risk.
Individual risks are the risks that people have the right to take. Bear in mind that your residents have the same rights to take risks as you have provided that there is no legal reason to prevent them. So a lot of risk simply isn’t your business as care provider. It’s up to the individual to decide so long as they have the capacity to make their decision (more on capacity later in this series).
Organisational risks are those risks that you as an organisation have created and so you have to manage them and keep them at an acceptable level. For example – you may be responsible for maintaining thermostatic mixer valves in the bathrooms or for keeping hoists in good repair.
There is a difference between organisational risks and individual risks. Basically we have no right to interfere with a person’s legal right to self-determination unless they lack the capacity to understand the risk or some other legal justification authorises us to interfere. So if you want to prevent Mrs. Jones from going down to the post office you need to be able to say very clearly why she cannot make this particular decision (to go out) at this particular time.
If you want to prevent her in the long term you will need legal authorisation such as a Deprivation of Liberty Safeguards Authorisation or a court order. It is no longer acceptable for us to continually distract Mrs. Jones on the grounds that she’ll forget in a moment or two. That is likely to be a criminal offence under the modern rules.
Later articles in this series will explore the rules around capacity and liberty more completely. For now it is enough to identify the following principles:
- Do all that you reasonably can;
- Don’t break the law;
- Be able to please the judge if asked;
- There is a difference between individual and organisational risk;
- The organisation that creates the risk must manage the risk;
- People have the right to take risks;
- Peoples’ rights casn only be taken away with legal justification