Social work and end-of-life care

Social work is important in end-of-life care

Legal case on duty of care to multiprofessional colleagues (and carers)

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It’s not often you get an authoritative legal judgement about health and social care professionals working together. But here we are: an interesting Court of Appeal judgment that relates to multiprofessional working has been issued.

Link to the judgement.

A social worker employed by the local authority was attacked and injured by a mentally ill patient on leave from a mental hospital. Before he left the hospital, he told staff of the healthcare trust that he was going to kill her, and they knew he was hearing voices and had other symptoms of mental illness that made him dangerous to her. They did not inform her of the risk. She sought damages from her own employer (which refused to pay out on the grounds that because it didn’t know about the risk in law it was not responsible, and anyway it was her fault she didn’t find out about the risk – I think that was a callous decision for a local authority to make about one of its employees doing a difficult and dangerous job). She also sought damages from the two health trusts on the grounds of their responsibility for the failure of their staff to warn her.

There was a detailed official protocol on Working Together signed by the three authorities, and working relationships between the staff were very close. There is, apparently, a recognition in the courts that multiprofessional working is to be encouraged in difficult cases like this. However, the health trusts applied to have the case struck out, that is, they wanted a decision that it should not go to trial.

They did this on the grounds of a long line of cases that say that public authorities are not required to warn people or do something else about risk to them, unless there is a very clear and immediate risk, or unless they had formally accepted the responsibility for a warning. So, for example, it has been decided that the police have no responsibility to issue a general warning to people who might be affected because a criminal is dangerous. And housing welfare officers do not have to tell other people that a tenant might be dangerous. This is reasonable, because it would lead to defensive behaviour on the part of the authorities and the allocation of a lot of resources to give people routine messages ‘just in case’. The health trusts argued that they had a responsibility to the patient, not to anyone else.

I have said before, often, that the healthcare professions carry this noxious argument about their responsibility to their patients too far. Yes, of course it’s right that they focus on their patients, but they are part of humanity (healthcare managers? you ask – but I think the evidence suggests they are human). They ought not to go out of their way to ‘encourage’ as the judge put it, the man to go home when he clearly had serious symptoms and was uttering worrying threats about a public official. A normal human being type person would forget about the medical niceties and warn the non-employee whose life was being threatened.

However, the social worker wanted to argue that the protocol and the close working arrangements put her in a special position. She was not a member of the public wanting a general warning, she was one of a small number of professionals, known well to the people who knew about the risk, a ‘quasi-employee’ of the health trusts. It is accepted that the duty of confidentiality may and should be breached to protect employees. She (through her lawyer) argued that this showed that it was not an immutable duty, and put forward a stream of cases that showed that the facts of the case should be considered, rather than her points being rejected out of hand by ‘striking out’.

And she won, so presumably it will go to a hearing.

Now, let’s be careful about this. The judges are not saying that everyone in health and social care owes a vague and woolly duty of care to each other, but they are saying you should make a sensible decision based on the facts. And if someone thinks you didn’t, they should be able to argue the case in court, not have it automatically assumed that everyone but the gilded few employed by health care trusts are the only ones to be given protection. I think that health trusts and professionals need to square up to their shared responsibility when they have joint working arrangements. Joint working arrangements are designed to benefit all the members of the public and services involved not just their patients and their own organisation.

But there’s a point to be made about this in a more general way. We are moving towards a healthcare system in which healthcare workers will be cooperating with all sorts of providers of care. Look at that word again ‘cooperating’. ‘Co’ means together and ‘operating’ means doing it: the word (with or without its hyphen) means ‘doing it together’. Doing it together doesn’t mean the private sector organisation that’s trying to make a profit can do what it likes because it’s not a public body and its profits are inviolate, but equally it means that the NHS employee is not in a separate legal category of people who doesn’t have to take account of anyone else.

That doesn’t just mean social workers. It means keeping carers and patients involved as well. There were a number of cases in the 1990s where family members were attacked or killed by patients because healthcare professionals maintained their duty of confidentiality to their patients, and didn’t think they should take account of the patient’s family.

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Written by Malcolm Payne

14 August 2012 at 12:19 pm

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