Key Legal Principles and Duties

·         Duty of Care: A legal obligation to act with reasonable care to avoid causing foreseeable harm to another person. In health and social care, this duty is automatically owed by professionals and organisations to their service users/patients. Establishing breach requires proving:

1.    A duty was owed.

2.    The duty was breached (the standard of care fell below what is reasonably expected).

3.    Causation (the breach directly caused the harm).

4.    Harm/Damage occurred (physical, psychological, or financial).

·         Standard of Care: The level of skill, care, and diligence expected of a reasonably competent professional in that specific field or role. The Bolam test (UK) states a professional is not negligent if they acted in accordance with a practice accepted as proper by a responsible body of professional opinion, even if others disagree. The Bolitho modification added that the accepted practice must also withstand logical analysis by the court. For non-professional tasks (e.g., basic personal care), the standard is that of a reasonably careful person undertaking that task.

·         Negligence: A breach of the duty of care that results in harm. This is the basis for most clinical and care-related litigation. Requires proof of all four elements mentioned under Duty of Care. Vicarious liability means employers can be held legally responsible for the negligent acts of their employees committed during their employment.

·         Consent to Examination and Treatment: A fundamental principle. Touching a person without valid consent can constitute the tort of battery (civil) and potentially assault (criminal). For consent to be valid, it must be:

1.    Voluntary: Given freely, without coercion or undue influence.

2.    Informed: The person must receive sufficient information about the nature, purpose, benefits, risks, alternatives (including doing nothing), and consequences of the proposed intervention, in a way they can understand. The Montgomery v Lanarkshire Health Board (UK Supreme Court) ruling emphasised the need to disclose all material risks – those a reasonable person in the patient’s position would likely attach significance to, or which the doctor knows (or should know) the specific patient would find significant. This shifted from a purely ‘doctor-knows-best’ (Bolam) approach for information disclosure to a more patient-centred one.

3.    Capacitous: The person must have the mental capacity to make that particular decision at the time it needs to be made (see Mental Capacity Act below).

o    Consent can be express (verbal or written) or implied (e.g., holding out an arm for a blood test). Written consent is usually required for significant procedures.

o    Consent is ongoing and can be withdrawn at any time, provided the person has capacity.

·         Mental Capacity: The ability to make a specific decision at a particular time. The Mental Capacity Act 2005 (England & Wales) established a framework:

o    Five Statutory Principles:

1.    Presumption of capacity (start by assuming everyone has capacity unless proven otherwise).

2.    Support to make decisions (all practicable steps must be taken to help someone make their own decision before concluding they lack capacity).

3.    Unwise decisions (a person is not to be treated as lacking capacity merely because they make an unwise decision).

4.    Best interests (actions/decisions taken for someone lacking capacity must be in their best interests).

5.    Least restrictive option (actions/decisions must be the least restrictive of the person’s rights and freedom of action).

o    Test for Lack of Capacity: A person lacks capacity if, at the material time, they are unable to make a decision for themselves because of an impairment of, or a disturbance in the functioning of, the mind or brain (temporary or permanent). The inability must relate to one or more of:

§  Understanding the information relevant to the decision.

§  Retaining that information long enough to make the decision.

§  Using or weighing that information as part of the decision-making process.

§  Communicating the decision (by any means).

o    Best Interests Checklist: When making decisions for someone lacking capacity, decision-makers must consider (among other things) the person’s past/present wishes and feelings, beliefs and values, factors they would consider if able, and views of relevant others (family, carers), but must not be motivated by a desire to bring about the person’s death.

o    Advance Decisions to Refuse Treatment (ADRT): Legally binding documents made by a capacitous adult specifying treatments they wish to refuse if they later lose capacity.

o    Lasting Power of Attorney (LPA): Allows a person (donor) while capacitous to appoint someone else (attorney) to make decisions about their health/welfare and/or property/affairs if they lose capacity.

o    Court of Protection: A specialist court dealing with decisions concerning people who lack capacity.

o    Deprivation of Liberty Safeguards (DoLS)/Liberty Protection Safeguards (LPS): Legal procedures required when a person who lacks capacity to consent to their care arrangements is under continuous supervision and control and not free to leave a hospital or care home, amounting to a deprivation of liberty (Article 5, HRA). Designed to ensure such deprivations are lawful, necessary, proportionate, and subject to independent review and challenge.

·         Confidentiality and Data Protection: A duty to keep information about service users private and secure. Based on common law, statute (Data Protection Act 2018/GDPR), human rights law (Article 8 HRA – right to private life), and professional codes.

o    Information should only be accessed on a ‘need-to-know’ basis.

o    Sharing information requires a legal basis, usually:

§  Consent from the individual (explicit, informed).

§  Best interests of an individual lacking capacity (under MCA).

§  Legal requirement (e.g., court order, reporting certain infectious diseases, statutory safeguarding duties).

§  Overriding public interest (e.g., serious risk of harm to others, prevention/detection of serious crime). This requires careful balancing and justification.

o    GDPR principles include: Lawfulness, fairness, transparency; Purpose limitation; Data minimisation; Accuracy; Storage limitation; Integrity and confidentiality (security); Accountability. Individuals have rights (access, rectification, erasure, etc.).

·         Safeguarding (Adults and Children): Legal duties on specific agencies (e.g., Local Authorities, NHS bodies) to protect individuals from abuse and neglect.

o    Adult Safeguarding (Care Act 2014, England): Local authorities have duties to make enquiries (or cause them to be made) if they suspect an adult with care and support needs is experiencing, or at risk of, abuse or neglect and cannot protect themselves. Focus on Making Safeguarding Personal (MSP) – involving the adult in decisions about their safety. Types of abuse include: physical, sexual, psychological/emotional, financial/material, neglect/acts of omission, discriminatory, organisational, domestic violence, modern slavery, self-neglect.

o    Child Protection (Children Acts 1989/2004): Paramountcy of the child’s welfare. Duties on local authorities and partners (police, health) to investigate concerns of significant harm and take action to protect children. Procedures involve referrals, assessments, strategy discussions, child protection conferences, and potentially legal orders (Care Orders, Supervision Orders).

·         Human Rights: Public authorities must act compatibly with the ECHR rights (HRA 1998). Key rights in health/social care include:

o    Article 2: Right to life (imposes duties to protect life, e.g., adequate care, investigation of deaths).

o    Article 3: Prohibition of torture, inhuman or degrading treatment (relevant to neglect, abuse, poor conditions, restraint).

o    Article 5: Right to liberty and security of person (relevant to detention under mental health legislation, DoLS/LPS).

o    Article 8: Right to respect for private and family life, home and correspondence (relevant to confidentiality, personal care choices, visiting, relationships, surveillance).

o    Article 14: Prohibition of discrimination in the enjoyment of Convention rights.

o    These rights are not all absolute; some can be interfered with if necessary, lawful, and proportionate to achieve a legitimate aim (e.g., public safety, health protection).

·         Equality and Non-Discrimination: The Equality Act 2010 prohibits discrimination, harassment, and victimisation based on protected characteristics.

o    Direct Discrimination: Treating someone less favourably because of a protected characteristic.

o    Indirect Discrimination: Applying a provision, criterion, or practice that disadvantages people with a particular protected characteristic without objective justification.

o    Harassment: Unwanted conduct related to a protected characteristic that violates dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment.

o    Victimisation: Treating someone badly because they have made/supported a complaint under the Act.

o    Duty to Make Reasonable Adjustments: For disabled people, requires service providers and employers to take positive steps to remove barriers (e.g., providing information in accessible formats, modifying premises, adjusting policies). This duty is anticipatory for service providers.

o    Public Sector Equality Duty (PSED): Requires public bodies (and those exercising public functions) to have due regard to the need to: eliminate unlawful discrimination, advance equality of opportunity, and foster good relations between different groups.

·         Record Keeping: Legal and professional requirement. Records must be accurate, complete, contemporaneous, legible, objective, and attributable. They serve as evidence of care provided, support communication, ensure continuity, aid audit/research, and are legal documents. Poor record-keeping can contribute to negligence claims and hinder investigations. Service users generally have a right to access their records (Data Protection Act/GDPR).

·         Regulation of Professionals and Providers:

o    Professional Regulation: Statutory bodies (e.g., Nursing and Midwifery Council – NMC, General Medical Council – GMC, Health and Care Professions Council – HCPC, Social Work England) maintain registers of qualified professionals, set standards for education, conduct, and performance, investigate fitness to practise concerns, and can impose sanctions (suspension, conditions, striking off). Registration is often mandatory to practise certain professions.

Provider Regulation: Bodies like the Care Quality Commission (CQC) in England register, monitor, inspect, and rate health and adult social care providers (hospitals, care homes, GP practices, dental surgeries, etc.) against fundamental standards of quality and safety. They have enforcement powers (warnings, fines, conditions, closure). Similar bodies exist in other UK nations and jurisdictions.