The now widely reported increase in knife crime in the UK is a great social ill and has gravely affected many individuals, their families and their social groups (Allen and Audickas, 2018). It has taken communities aback and has presented those charged with the maintenance of safety in the community with a formidable challenge. Home Office statements have been replete with exhortations, not only that people should be vigilant but also that people should report suspicions.
In an attempt to address this worrying trend, the Home Office has announced proposals to impose a legal duty on certain professionals, notably including nurses, to do something about it (BBC News, 2019). In this article, the author looks at this attempt by the authorities to interfere with professional autonomy.
A new legal duty to report knife crime
On 1 April 2019, the Home Secretary Sajid Javid announced that his department was to present proposals to place nurses, as well as teachers and certain other professionals, under a legal obligation to report clients or patients on suspicion of being involved, or perhaps having been involved, in knife crime (BBC News, 2019).
The motive for such a proposal can be assumed to be benevolent. But the imposition on third parties to report on an illegal and nefarious activity, of a reporting duty is a whole new ball-game. A very pertinent question is: at whom is the duty aimed? One is hard pressed for a satisfactory answer.
How might this new legal duty affect community nurses?
District and community nurses are apt to find themselves in the thick of healthcare issues that not only affect the individual patient or client but that affect, and can be affected by, social and economic circumstances and their personal and social relations.
Sharing information can play a vital role in the proper delivery of patient care. However their working practice may be structured, no district or community nurse can do without the fullest knowledge of the case in hand. Indeed, an omission to take into account salient information could—subject to several caveats—constitute negligence (Rogers, 2010). Professional autonomy involves seeking the best information in any particular case, as well as receiving information that is unsolicited.
Confidentiality
Keeping a patient's confidence, in all senses of the word, is integral to nurses’ professional ethic. But does the professional duty to keep a patient's confidences stand in the way of information-sharing? In general, no.
The moral, professional and ethical principles of patient confidentiality are not written in stone and are subject to all sorts of nuances according to the circumstances of a particular case. District nurses in particular are uniquely placed to assess the problems thrown up by a particular case, including its familial and social setting and background.
If a nurse in the community were faced with a case appearing to involve knife crime, what to do would be a matter of their professional judgement. They might consider it prudent, or even necessary, to seek information from family members or others in the patient's social group. They might seek guidance from a colleague who has had a similar experience, or depending on how their practice is structured, from someone in a management position. This would not be breaching confidence— rather, it would mean being sensible and sensitive to the details of the matter in hand.
Then, there is the question of how a patient views the nurse's function. They might see it beyond the nurse's duty to get involved in anything other than their healthcare.
A word of reassurance is due here. In many years of teaching on medico-legal seminars, the author has often come across the belief that ‘breach of confidentiality’ is legally actionable—that nurses can be sued for damages if they breach confidentiality. This is, however, untrue. Preservation of a patient's confidences is a principle, not a rule (Dworkin, 1986). Rules have a hard core and are usually subject to exceptions. Principles, on the other hand, have dimensions of weight and importance, and assessing these dimensions of weight and importance is what professional judgement is all about (Dworkin, 1986). Successful legal actions for breaching confidence are found, for example, in cases of giving away trade secrets in such a way as to cause, or to threaten to cause, financial loss or failure to gain (Law Commission, 1981).
Legal duty to do what?
In general, the law does not impose a positive duty to act for another's benefit, nor even to prevent harm to another. There are exceptions in cases where a person undertakes a professional, or associated, responsibility to act to another's benefit. Such is the situation of a nurse, and indeed all professionals working in healthcare. Even the Hippocratic oath commences mildly with ‘first, do no harm’. Needless to say, dedicated professionals go way beyond this.
But here is a key question. Is this proposed new legal duty a duty to take such care as is reasonable in all the circumstances to benefit the patient by the application of such professional expertise and experience as is calculated to benefit them? Or is it a duty, a legal obligation, to effect a result desired by the authorities? It seems to be the latter case.
It is difficult enough to carry on a professional practice with all the responsibilities it involves, without having to prepare to shoulder yet another burden. Most if not all district and community nurses are in the thick of the social mix. Their expertise, experience and professional responsibilities have to be actioned amid any number of therapeutic and social variables. In their daily work, they struggle to maintain an integrity and trust that would be beyond many. They seek to maintain a balance of interests that is nuanced, informed and, often, subtle.
So what is the nature of this new legal duty which the Home Office proposes? Is it a duty to report a person who the nurse thinks is, or has been, up to no good? Indeed it is not. It may very properly be responded that an inclination to report could itself form part of the legal professional duty of care owed by district and community nurses to their patients and clients.
The lessons from history are limited and inconclusive. There was a famous case some years ago in California, US, in which healthcare professionals employed by a university had more than persuasive information that a male student had killed a female student who had rebuffed him (Tarasoff v Regents of the University of California, Supreme Court of California, 1976). A possible conclusion to reach in the wake of this crime was that the university authorities should have done something to prevent the tragedy. Unfortunately, it is not as easy as that. Unlawful killing in the US is a state and not a federal crime. A number of states passed legislation in the wake of the above-mentioned case imposing a legal duty on those ‘in the know’ to disclose information that could prevent such tragedies. But the interpretation of such legislation and its application in practical cases has been so beset with ifs and buts, and with conditions and exceptions, that anyone trying to describe the legal position is faced with a virtually impossible task.
The UK Home Office has now taken upon itself the formidable job of seeing through legislation which is, in all likelihood, impossible to frame effectively. The use of the word ‘report’—which, as proposed, will come to describe a legal obligation—tells us little or nothing, for example, why to report? To whom and when? What are the exceptions? What are the benefits and dangers weighed in the balance?
Wider effects of the proposed legal duty
Many other people may be affected by the legal obligation to report suspected knife crime. Service managers are but one example. If a service manager were, even in the utmost good faith, to institute a working system that fell foul of the letter or the spirit of the obligation to inform, there exists the possibility that a criminal charge of conspiracy to frustrate the exercise of a legal duty could be brought. Conspiracy is a criminal offence, punishable in common law with imprisonment (Ormerod and Laird, 2018).
It may be the case that no magistrate or Crown Court would be harsh enough to convict someone on these grounds. But the law would be the law, and it would be a mess. In one well-reported case, a general medical practitioner declined to respond to a magistrate's demand that he disclose to the court details about his patient, a driver up for a road traffic offence, because he considered that to do so would breach his patient's confidence (Hunter v Mann, Queen's Bench Division of the High Court, 1974). The doctor himself was subsequently prosecuted for refusing to obey the magistrate's instruction under the law, and was fined £5. Perhaps this was not so much a fine but rather a tax on professional integrity.
Another affected group would be the already stretched police force, which would be certain to feel the effects of a new addition to the range of criminal offences. Indeed, they are the other body to have the positive legal duty prospectively imposed on them. The paperwork would be enormous, as would the time spent on trying to establish the veracity, and/or good faith of the information. An ultimate irony would be that the administration of compliance with this new information duty would divert police time from investigating knife crime itself. It could also lead to defensive practice, which is never a desirable thing.
What is next?
So, where do district and community nurses stand? In the middle, as usual. That is where the proposal will put them. No court is going to blame nurses if they have done their professional standards. If the nurse feels uncomfortable considered, experienced, professional best, and if what they have done conforms to reasoned and acceptable about informing on one of their clients, they simply should not do it, and to heap extra, and possibly useless, legal responsibilities on already over-stretched district and community nursing services seems unfair.
Everything will depend on how precisely the new legal duty is framed. The lawyers in the Office of the Parliamentary Counsel are faced with a daunting, unenviable task.