Liability for carelessness is given its legal expression in the law relating to negligence (Bolam v Friern HMC [1957]). Negligence has evolved in English law as a civil wrong or tort, with judges establishing rules through precedent. To succeed in a negligence claim, three key elements must be established (Whitehouse v Jordan [1981]):
- The patient was owed a duty of care by the nurse
- There was a breach of that duty of care and
- The breach of duty caused loss or harm recognised by the courts.
Duty of care
Legally, individuals are not generally required to exercise care toward others unless a specific duty situation exists. However, in certain situations, called duty situations, the nature of the relationship gives rise to a duty of care. The courts rely on previous cases to guide them as to when a duty of care arises.
In English law, the nurse-patient relationship inherently creates a duty of care (Kent v Griffiths & Others [2000]). This is a duty to be careful, to take care and not to harm the patient through careless acts or omissions.
Breach of duty
Once a duty of care has been established a patient who feels they have been harmed by a nurse's negligence must show that the care given fell below the standard required in law as a result of carelessness.
Nurses are generally expected to meet the standard of care set by the profession, employer, and the law. In law the professional practice standard is determined by reference to Bolam (McCulloch v Forth Valley Health Board [2023]).
Lord Diplock in R(Burke) v GMC [2005] described a nurse's duty of care as:
‘[a] Single comprehensive duty covering all the way you are called on to exercise skill and judgement in improving the mental and physical condition of the patient.’
Case law demonstrates that the wide remit of that single comprehensive duty has been seen to cover direct and indirect care and treatment, advice giving, recordkeeping, history taking, even the quality of handwriting (Prendergast v Sam and Dee Ltd & others [1989]).
The rule in Bolitho
In Bolitho v City & Hackney Health Authority (1998), the House of Lords ruled that expert evidence supporting professional practice standards must withstand logical analysis, making the court the final arbiter of these standards.
Patient assessment and the duty of care
In Lukes v Kent & Medway NHS Trust & Social Care Partnership [2024] the High Court considered whether a mental health nurse's failure to obtain collateral information – due to confidentiality and lack of consent – during a mental state assessment of a patient detained by police, constituted a breach of duty of care.
The patient was a man who had sustained serious injuries after he had jumped from high on to railway tracks. A week earlier he had been detained by police who requested a mental state examination while he was in custody. The nurse attempted to speak to the patient, who refused to engage or be examined, and refused consent for the nurse to speak to his mother or GP. At the second attempt, the nurse again felt unable to obtain collateral history from the mother or GP because the patient was still aggressive and unlikely to give consent, and to do so without consent would be a breach of confidentiality.
It is not in dispute that the NHS trust owed a duty to take reasonable care in relation to the patient's mental health and to avoid acts or omissions that might foreseeably cause injury.
The High Court considered the allegations of breach of duty by the mental health nurse who failed to pay sufficient regard to the risk of self-harm by not obtaining a collateral history from the patient's mother or GP. Had this information and history been obtained by the nurse he would have been able to inform his assessment by reference to the long history of mental ill health and risk of self-harm
On the argument that the nurse could not speak to the patient's mother or GP without the patient's permission, the High Court held that the nurse did not require the consent of the patient to obtain the collateral history because this could have been done by the nurse asking the mother and GP what they had witnessed about the patient's mental state and risk of self-harm over the preceding 2 years and have done so without the nurse disclosing information in breach of his duty of confidence to the patient.
The High Court held that the mental health nurse's failure to ascertain a full self-harm history, speak to the patient's mother or GP were a breach of the duty of care to the patient because it resulted in a failure to complete a proper screening assessment (Lukes v Kent & Medway NHS Trust & Social Care Partnership [2024]).
Causation
Causation requires that the patient is able to show that as a result of the nurse's carelessness they suffered injury or harm. In Lukes, the case now moves to a further trial to consider whether the patient would have been detained under the Mental Health Act 1983 had a properly informed mental state assessment been undertaken and whether the detention would have prevented the act of self harm.
Conclusion
Although the Lukes v Kent & Medway NHS Trust & Social Care Partnership [2024] case remains to be settled on the matter of causation, it can be seen that a failure to obtain collateral history relevant to a proper assessment is an arguable breach of a nurse's duty of care to a patient. Collateral history is a key component of a properly informed assessment and in the view of the trial judge in Lukes can be obtained from records, relatives and other professionals without the nurse disclosing information that would be in breach of the nurse's duty of confidence to the patient.
KEY POINTS
- Nurses owe their patients a duty of care
- The High Court held that a mental health nurse's failure to obtain collateral information constituted a breach of duty of care
- A failure to ascertain a full self-harm history, by means of speaking to the patient's mother or GP, resulted in a failure to complete a proper screening assessment
- The nurse did not require the consent of the patient to obtain the collateral history because it could have been achieved without disclosing information in breach of the duty of confidence to the patient