A cautionary tale
We begin with a story that will hopefully bear no relation to the professional experience of readers. A GP once told me of a call he received from a gentleman who requested a home visit ‘to have a word about Grandad’. The GP duly turned up and was ushered into the living room where the family was assembled. The same gentleman acted as family spokesperson and said to the doctor: ‘Well, you see, it’s that he’s getting on a bit and we think it’s time he went.’ ‘Went where?’ asked the doctor. Expecting some discussion about care homes or alternative accommodation, he received the laconic reply, ‘Well, just-er-gone’. While there are those who believe that going to A Better Place is something to be wished for, such a belief does not figure in a district nurses professional practice.
Asking precisely how the family wished to achieve their desired end, namely Grandad’s undesired end, the spokesperson said that was a matter for medicine. The doctor was led upstairs to take a look at Grandad. He was indeed bedridden because the family had ridden him there. He appeared to be in good spirits and in good health for someone of his age. He was propped up against the pillows with a TV and a copy of the Racing Post. He did not have any questions for the GP and was simply pleased to see a new face. The doctor and his deathwishing interlocutor returned downstairs, the GP explaining that families have no right under English law to do away with people they have had enough of.
The district nurse and home care
Home care of people who are vulnerable due to age and infirmity is conditioned by circumstances. People who are vulnerable for other reasons, including lack of judgement as to safety for self, are owed a legal duty of care by those in their charge. All reasonable steps must be taken to avoid such lack of judgement, and therefore, any risks of accidents. It is a commonly-accepted statistic that 80% of accidents happen in the home and increased risks to vulnerable patients invite particular attention.
The district nurse’s role is twofold: to advise on risk management and to take what direct steps appear to be called for to mitigate foreseeable risks to the safety and wellbeing of the person in their care. It is a good idea to enquire during follow-up visits as to how these steps are going and how they are being received by the patient, though the answer may sometimes be obvious without having to put into question. Both advice and follow-up should always be clearly recorded in the notes. In Grandad’s case, the Racing Post and the TV were adequate to anchor him to his comfortable vantage point. It might have been different had he felt the urge to pay a visit to the racetrack and been in no fit state to do so without being accompanied. The same goes for anyone being cared for at home who could be foreseeably at risk were they to be presented with unfamiliar surroundings.
Restriction in home care
Vulnerable people may not only require some sort of restriction, they deserve it. The type and degree of restriction depend on individual circumstances and the state of mental and physical health presented by each patient. Restrictions may be indicated by any form of vulnerability be it in the young, the old or any other vulnerable state. They are, it has to be said, restrictions on liberty and personal freedom. But unlike some infringements of human rights, they are placed not for infringements’ sake but in pursuance of a legal duty of care. Not putting them in place could lead to legal liability, were harm or injury to befall the vulnerable patient. There is a world of difference between keeping the entrance doors to a house locked and consigning Grandad to the basement in the manner of a Netflix thriller.
An ever-present myth
During the 1980s, there emerged the myth that mental handicap (learning disability) units are not legally permitted to care for their patients on a locked ward. This myth was a hangover from the ‘let it all hang out’ spirit of late 1960s Haight-Ashbury, San Francisco, where freedom ruled and anything went, when commune members did anything they liked to themselves and their fellows, no matter what the outcome. The Flower Power ethos was seized on by social workers who erected a false pillar of ‘freedom’ as a hallmark of their practice and the ‘locked doors’ myth became part of hospital and social care. Patients should not, must not, be nursed on a locked ward, went the cry.
The higher authorities seized on this false belief, and were more than happy to see safe and secure learning disability facilities turned into luxury apartment blocks and country clubs. The Haight-Ashbury approach sadly stopped short of giving the money to the people who needed it, most namely the thousands of vulnerable patients who had been turfed out of the only home they knew and their only safe haven. The totem of ‘care in the community’ became prevalent. In the learning disability care facilities, which managed to escape closure, the locked doors myth remains, at the peril of both patients and those in their charge. Patients, carers and the public were hoodwinked into a false and dangerous belief and there appears to have been no attempt by the Mental Health Act Commission's (MHAC) successor, the Care Quality Commission, to correct it.
It is possible, though less likely, that the locked doors myth might show its unwelcome face in district nursing domiciliary practice, though it is fairly safe to assume that district nurses have a better understanding of the law. When their own children go to a party at a friend’s house and the parents keep the doors locked, their children are not being kidnapped.
The basic law is simple. The tort (civil wrong) of false imprisonment consists in the unreasonable restriction of a person’s physical liberty. The reasonableness of the physical restriction depends entirely on the circumstances of each individual case and is guided by common sense.
Restrictions short of confinement
Numerous restrictions short of confinement are too obvious to mention, save that they are part of common sense in care. Guarded plug points, safe electrical equipment, including particularly heating appliances, window guards and a whole host of other measures may be indicated according to the physical surroundings of the patient and the nature and extent of their vulnerability. District nursing experience of caring for vulnerable patients teaches that everyday objects can be a source of danger.
I call to mind a memorable case where common sense was lost. A colleague on the MHAC was once in a seclusion room on a visit to a high-dependency learning disability unit accompanied by a lay member. My colleague was an experienced nurse and was at the time in question, VicePresident of the Royal College of Nursing. She suggested a repositioning of the bed (fixed to the floor) so as to avoid the risk of back injury when lifting a patient. Not to be outdone, the lay member added, ‘Yes, and how about some pretty curtains?’, and they sang in Haight-Ashbury ‘Be sure to wear some flowers round your neck’(apologies to Scott McKenzie who wrote ‘If you’re going to San Francisco’). A little law is a dangerous thing; none at all is disastrous.
Consent and confidentiality: things not to fear
It is helpful to dispel another couple of myths when discussing vulnerable patients being cared for at home. One relates to confidentiality, the other to consent.
So far as consent is concerned, the understanding of a vulnerable patient and their capacity to understand and to be happy with restrictions placed for their safety and welfare is normally essential to their wellbeing. The fuller their understanding of what their carers consider necessary, the better. ‘It’s for your own good’ may satisfy some, if not all. Like a child refused more ice-cream, a vulnerable person used to a moderate tipple may sulk at the refusal of another glass but may be clinically better off without it. Restrictions on the freedoms that others might enjoy may be part of a care package and as such, a part of the legal responsibility owed to them by those charged with their care. The patient’s freedom to make independent personal choices is delimited by the duty of care owed.
Confidentiality also carries its own limits. Keeping things from a vulnerable patient can be properly done in several situations. Restricting reading-matter could be desirable if it concerned material about war apt to bring back unwelcome and intrusive memories in someone with earlier first-hand experience and which could foreseeably cause a recurrence of post-traumatic stress disorder. Similarly, watching the news on TV, where death, injury and strife are reported, there is no harm and maybe a lot of good in contriving ‘watersheds’ appropriate to the patient’s particular experiences. In the case of a patient whose present condition results from such past experience, the desirability of doing so becomes a positive duty, clinical and, probably, legal.
These examples are in fact more closely related to secrecy than they are to confidentiality. Confidentiality in its strictest sense relates to the giving or withholding of information, personal to the patient or to others. A separation should be made here between personal matters, which the patient does not wish to discuss with or in front of a third party, including a healthcare professional, and ones that bear directly on the patient’s care. While the former tend to be avoided as a matter of common decency, the latter attract different considerations. There are cases in which disclosing information to a third-party clinical professional may not only be an acceptable breach of confidentiality, but a positive duty, as it could have a direct bearing on the care and treatment of a particular patient. There are, of course, decent and proper ways of doing things.
Contrary to widespread belief, no legal wrong is committed by breach of the duty of confidentiality in a clinical context, except in the case where the information is imparted in a manner that causes reasonably foreseeable mental or physical harm to the patient. A report by the Law Commission, a body established by statute to examine and report on matters of concern in the current law, concluded that there is not, nor ever has been, a legal wrong of breach of confidence. Apparent exceptions include breach of commercial confidence in the law of contract, and as such, are outside our present purview.