Public (owing a duty of care)
The National Health Service Act 1977 charges the Secretary of State with a duty to provide healthcare to the public. Healthcare professionals by virtue of their relationship with the patient and their employment within the NHS owe a duty of care to the patient. A duty of care is expected of all practitioners and is both a professional and legal obligation. Both professional misconduct hearings and legal actions can arise from failure in a duty of care.
As an advanced practitioner the care owed to the patient would be that reasonably expected of any ordinary healthcare professional practising at that level and professing to have that particular skill set. The Bolam test has traditionally been the legal standard for clinical negligence cases. See Standard of Care, Clinical Negligence Case studies including Bolam V Friern Hospital Management Committee in the resources section.
The Bolam test has previously been used to judge medical practice but would apply to all healthcare professionals. Negligence is determined by whether the healthcare professional acted in accordance with accepted practice as recognised by a responsible body of professional opinion. More recent cases e.g. Bolitho v City and Hackney Health Authority have held that the professional opinion should be logically defensible.
A duty of care encompasses avoiding actions and omissions that are reasonably likely to cause harm to the patient. The legal test of a duty of care was established in the case of Donoghue v Stevenson, Lord Atkin stated:-
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour".
A duty of care exists as part of the contract of employment in the NHS. This duty of care is owed in delict or tort as there is no direct contractual agreement between the patient and practitioner. Should a patient consult an advanced practitioner privately action may be possible against the individual within the realms of contractual law.
Whether nurses are obliged to provide assistance to the public outwith their employment and at all times is less clear. Legally, healthcare professionals are obliged to provide care to patients in an emergency situation outwith their work environment:
- if they have an existing professional relationship with the individual
- or they have created the situation which resulted in harm to the individual
In these situations, nurses remain accountable for their actions and have a professional duty to provide care. The standard of care expected in such a situation would be that which could be reasonably expected from any health care professional with their knowledge, skills and experience (NMC, 2015).