Patient health problems may be caused directly or indirectly by the cold, although it is usually in the latter case that problems present. The most obvious case of a direct cause is seasonal affective disorder. The presentation of this disorder is normally mental rather than physical, though it may be accompanied by psychosomatic symptoms. Seasonal affective disorder commonly presents as depression and clinicians should be careful not to mistake the one for the other. Depression may be triggered or exacerbated by the cold.
The remainder of this article looks at effects caused by the cold which are less direct but no less significant when it comes to legal responsibilities.
Making patients’ problems worse
Nurses in the community have a responsibility not only to treat but also to anticipate and, if possible, to avoid. This is more easily said than done for the simple reason that those to whom they owe a legal duty of care are ‘in the community’.
The more isolated the patient's circumstances the more onerous is the nurse's responsibility. Any patient who is not under direct observation requires, by definition, care and treatment at a distance.
In the case of a patient living alone, particular attention should be paid to their means of heating. Heating a confined space can be shored up by adequate insulation. Methods such as draughtproofing can be installed without great expense and grants from local authorities may be available for that purpose. When properly installed, it has an immediate effect. Broader problems of heat loss may be addressed by more substantial insulation; they could require planning permission and could also attract financial assistance. It is beyond the scope of a community nurse's responsibilities to draw up any detailed plan. However, an account of the potential harm to a patient in the absence of such measures could be a valuable tool in their possession when seeking to carry out necessary work and funding. Close communication can usefully be maintained with appropriate local authority and charitable organisations which are likely to also have direct access to people who can perform the work.
Personal access to and from a dwelling place may be crucial to a patient's wellbeing. Depending on their location, a patient's need for extra care in cold weather conditions increases. Ice and snow could even cause a sort of imprisonment. Mental as well as physical health is at risk.
Conditions exacerbated by being cold
Psoriasis, lupus and other dermatological condition may be made worse by the cold; the adverse effects of multiple sclerosis may be exacerbated; and asthma attacks may be triggered by those prone to the condition. Fortunately, there appears to have been no litigated disputes involving alleged legal responsibility for allowing an existing condition to worsen, in any weather. However, such responsibility could arise all the same.
In the list of examples just noted, the case of asthma is perhaps the most likely to arise and most likely to require attention to precautions. Accommodation occupied by elderly or infirm patients may be damp as well as insufficiently heated and insulated, and as such, may invite the onset or recurrence of asthma. Nurses in the community should therefore be mindful of the need to take precautions whenever practicable.
Precautions would include the safety of premises and the legal responsibility of managers to take reasonable steps to avoid mishap. This legal duty is owed to nurse practitioners as well as to patients. It is time to examine this legal duty insofar as it affects patients. The legal obligation of managers to take reasonable steps towards the safety of community nurses in their charge is an important aspect of professional practice but is outside the immediate purview of the present article.
Occupiers’ liability
To begin with a term which focuses on the occupier of the premise—be they owner or tenant—might appear to readers of an article on the protection of vulnerable patients against cold, to be inappropriate. Yet, the law places wider, albeit indirect, responsibility on others, too. It is this responsibility which we now examine.
The law has for centuries placed legal obligations on the occupiers of premises to make them reasonably safe for those who enter them. The word ‘reasonable’ is of the essence. As a leading textbook on the Law of Tort puts it: ‘You do not expect your guest to slide down the bannister.’ The Occupiers’ Liability Act of 1957 imposed no new legal duty in relation to the safety of premises but was, rather, a tidyingup measure. The Act imposes what it calls a ‘common duty of care’. The word ‘common’ might appear to add nothing, but it was in fact a compendious term to the differential duties which had, prior to the Act's coming into operation, been imposed on occupiers in relation to ‘invitees’ (guests) and ‘licensees’ (postal services, meter readers). The distinction between the two resulted from social attitudes which suited their times, but which was seen by the 1957 legislators as no longer serving a useful purpose.
The title of the Act might make it appear that the law looks at the legal responsibilities for safe premises through the eyes of the occupier. They are not, but neither are they to be judged purely from the lawful visitor. ‘Reasonable’ implies a balance between occupier and visitor. Disputes arise only when the two parties take such different views of property safety as to make litigation worthwhile. Litigated disputes relating to occupiers’ liability are relatively few when generally seen against the backdrop of negligence litigation.
The 1957 Act left unaffected an anomaly concerning allurements, even traps, for the unwary. Case-law had become unclear, so in 1984, a further Occupiers’ Liability Act was passed to clarify the law. While occupiers of land and premises need not go to extraordinary lengths to avoid injury, to the unwary they have a legal responsibility to avoid, or to remove if they exist,‘allurements’ which could reasonably be foreseen to be a source of injury to even unlawful visitors.
Patients in the community who are infirm to the extent of leaving the premise they occupy in a dangerous condition are not always capable of forming the necessary judgements to avoid them, still less of taking practical steps to do so. This is where management responsibilities for the safety of their team members comes to the fore.
Managers’ legal responsibility for a safe system of work
The responsibility of employers and managers to provide a safe system of work has existed in UK law for two centuries. With the advent of the Industrial Revolution in the early 19th century came industrial accidents, and those accidents caused personal injury which could affect or even remove a family's livelihood. Legislation on worker safety came surprisingly early given that the rich, who elected the legislators, were often slave-owners who were accepted by the morality of the times.
An employer—this includes managers—in both the NHS and the private healthcare sector, have a legal duty to establish and to maintain a ‘safe system of work’ for those in their charge. This legal duty does not ensure safety but takes reasonable steps to do so. On the other hand, the duty is not complied with by doing what the employer can afford to do. Otherwise, worker safety would be sacrificed on the altar of profit. Many of the litigated cases on safe systems of work have involved that very balance.
A safe system of work includes three separate, but related, elements: a duty to provide reliable (safe) workforce; a duty to provide safe equipment; and a duty to maintain a safe system of working conditions. It is in the context of this third aspect of the duty that community nurse managers encounter their legal responsibility. It is by no means an easy duty to fulfil for the simple reason that patients who are indirectly the subject of the duty which is owed to those charged with their care are not on-the-spot as are those in a confined setting such as a hospital which has, or should have, a health and safety officer. Care homes are a case in-between and the legal responsibility for the safety of community nurses will in many, if not, most cases, rest on the home managers rather than with an NHS or private sector community healthcare organisation.
Patients at-risk in their home
The Public Health Act 1936 empowered certain local authority employees to extract, if necessary, by force, a person clinically considered to be a health risk to themselves or to others. The Act is still on the statute book and is now 87 years old. It was passed at a time which well-preceded the eradication of a variety of contagious and potentially fatal diseases. For all practical purposes, the Act was replaced by the Care Act 2014 which bestows on authorised persons a variety of legal powers short of forcible extraction from the place where they live. A very useful practical commentary on the objectives of the 2014 Act and its objectives is to be found in the webpage from the Social Care Institute for Excellence. This document is well worth reading and enshrining in clinical practice.
A final mention might be given to a constrained and specific power conferred by section 136 of the frequent purpose Mental Health Act 1983, namely to take, if necessary, by force, a person suffering from mental disorders who may be a danger to themselves. The power is exercisable by a doctor appointed by the Mental Health Act Commission to exercise this in addition to many wider powers such as responsibilities relating to treatment for mental disorder; a social worker; and a police officer. Due to community outreach facilities in mental health services, the power is very rarely used. It is, however, good that the power exists with a clear delineation of the ways in which it is to be lawfully exercised.