Duty of care: Legal and Ethical Aspects of Health Care
At a number of points in the lectures I have referred to duties or obligations. To date those references have been either to ethical obligations or to legal obligations: what you believe to be required of you because based on some accepted value or principle, or what the law states as legally required of you. What we turn to now appears to have elements of both, although it should be construed as a legal obligation for reasons I will explain.
There can be some confusion surrounding the notion of a duty of care; even people well versed in health care practice might hesitate to offer a definition. The main reason is that the two components of the idea – caring and duty – do not fit together well in our everyday experience.
- When you really care about someone or some thing you act to protect them or it from a desire to do so. In some instances that desire can be very strong, but in others not so strong or even a weak desire fading off into indifference.
- But then on the other hand,there are occasions where we need to be reminded of what our role-related duties require. To get us into action to fulfill those requirements might not be easy; we might act reluctantly (without the sort of desire found in care-based action). Occasionally, people are prosecuted for a failure to exercise duties that are found by courts to be legally required.
With these very different common experiences in mind it could strike you as odd, or ridiculous, to be told that you are under a duty of care (understood as being duty bound to care for someone): caring comes from the heart, duty from the outside, from authority or from the role that we play (a duty statement or position description specifies a role).
The importanceto us of what we care about is the core of how we come to understand the whole business of importance. So when we think that someone is telling us what we should see as important (and hence care-worthy) we can take offence. Nobody is going to intrude into the sacred area of what we really care about unless invited in. A ticket to enter can usually be purchased on the basis of someone showing you how what they believe to be important is relevant to what you personally really care about.
Well, you need to put these normal, healthy, everyday assumptions to one side for the time being in order to grasp the legal notion of a duty of care. Curiously, heartfelt caring plays no role in the legal notion even though some famous judges have made statements to suggest that it does (more on this in a moment).
The legal notion of a duty of care has its home in a complex set of ideas that are usually bundled together in the legal notion of negligence. And creating negligence actions is just one of four main ways that the law has developed to deal with liability:
- Criminal liability aims to punish (among other things)
- Contractual liability protects interests based on promises
- Restitution aims to restore benefits, and
- The tort (wrong) of negligence is a method by which compensation for injury is governed and losses are allocated across our community
In the main we are talking about accidents and there is no iron rule that says negligence actions are the best way to distribute losses that result from accidents. Some communities have no-fault schemes (NZ for example) where insurance commissions apportion funds for injury and loss.
However, in Australia we do use the tort of negligence to distribute risk and losses, so let us turn to the way the law creates controls or categories that limit how a case or action for damages caused by someone’s putative negligence is structured. Judges have been quick to point out that acts of negligence (understood as carelessness) do not entail any liability to anyone unless the law imposes a duty on someone in the circumstances to observe care. This duty is a legal obligation to avoid conduct that is fraught with unreasonable risk of danger to others (or classes of other people). Heartfelt care might lead you to avoid conduct that impacts negatively on others, but the legal notion involves an imposed legalduty that does not assume anycompassionate motivation.
Let’s look at a fanciful scenario that raises some of the main issues.
We are at the Adelaide Oval and a Test Match between the West Indies and Australia is in progress. The West Indies are batting and Chris Gayle is at the crease. With what proves to be the biggest six in Adelaide Oval history, Gayle sends the ball sailing over the old scoreboard and well beyond (that is the fanciful part of the scenario). The ball lands on the footpath near the cathedral, but not before it has hit a female pedestrian, Sandra, squarely on the head, knocking her unconscious. In collapsing she suffers significant facial injuries as well as what proves to be ongoing neurological damage and associated psychological problems (agoraphobia and a generalized anxiety).
Has anyone in this scenario exhibited negligence in the normal sense of that term: i.e., shown a lack of concern for the interests of those who might reasonably be expected to suffer from some foreseeable action?
Were you in a position to apportion liability for the Sandra’s injuries on whom, if anybody at all, would you place it:
on Chris Gayle because he hit the towering six?
on the Adelaide Cricket Club because they are the owner/occupiers of the ground the ball flew out of?
on the architects who after all did not provide any additional screening to stop balls from flying out of the ground?
onAdelaide City Council for not installing a covered walkway adjacent to the oval?
What about the young woman? Did she contribute to her injuries by not taking the precaution of wearing a crash helmet when in the vicinity during a match?
From a legal point-of-view the elements of a cause of action in negligence are:
- A duty recognised in law to conform to a standard of conduct for the protection of others against unreasonable risks, encompassing:
the issue of whether a duty arises
the matter of what standards should be applied
- Given a duty, the failure to conform to the prescribed standard amounting tobreach of duty
- Material injury to the interests of the plaintiff
- The cause of the material injury must be a proximate, that is, not a remote cause
- Consideration of what the plaintiff might have done to limit their ability to claim in full: contributorynegligence or voluntary assumption of risk.
A lot of legal attention is devoted to the first of the elements and many of the tests that have been devised to work out if a duty existed sound promising but contain ambiguities. The most famous formulation was by Lord Atkin in Donoghue v Stevenson  AC 562, 580:
There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances…The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer’s question, ‘who is my neighbour?’ receives a restricted reply. You must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
It will be obvious to some of you, and maybe faintly familiar to others, that this idea of love of the neighbour is recorded in ancient Hebrew literature (Leviticus 19:18 and 34) and repeated in a number of Christian texts (Matthew 7:12, 19:16, 22.35, Mark 12:28, Luke 6:31. For our purposes, Luke 10:25, is where Lord Atkin’s reference comes from.
At its source, the idea into love your neighbouras yourselfis a direction to treat the interests of others as seriously as you would your own. That idea is very ancient over both the Middle East and Asia (Confucius has the oldest recorded version: “Do unto others what you want done unto you” of what later became known as the golden rule).
So Lord Atkin was using his Christian religious tradition to frame a conception of the duty that any one of us has toward others who might count as a neighbour in his legal sense.
In legal history Donoghue v Stevenson  was an early application of the rule that manufacturers rather than retailers can be held liable for the damage caused to customers by tainted products. The damage to a woman who drank a tainted bottle of ginger beer (it had a snail in it) was mild gastric illness, and more significantly, a form of psychological shock. These daysthe Trade Practices legislation sets out clear legal liability relationships between manufacturers, retailers and customers.
In health care there is now a taken-for-granted duty of care in your professional relationships. It pointless to debate that aspect of negligence: in your professional life it is going to be the standard of the care that you provide that will be the main issue under debate.
Recall Atkin’s position:
A duty recognised in law to conform to a standard of conduct for the protection of others against unreasonable risks (this encompasses both the issue of whether a duty arises and also the matter of what standards should be applied)
A failure to conform to that standard entailing breach of duty
An example of the use of the phrase ‘a duty of care’ will ariselater in this topic when we are considering mandatory reporting of child abuse and neglect. Section 11(5) of the Children’s Protection Act 1993 (SA), which sets out your legal duties as mandated reporters, states that:
A person does not necessarily exhaust his or her duty of care to a child by giving a notification under this section.
It might happen that the child about whom you have concerns is your patient and thus someone for whom you have an existing duty of care. The steps that you take to protect that child require consideration of continuing danger and might involve physically removing them from the scene or calling in those who are duty bound to carry out that task.
Back to the cricket
Any of the main characters, our possible defendants,identified in the scenario, excluding the unfortunate woman for the moment, is a candidate for being legally liable for their behaviour in failing to live up to the standard of reasonable care. HOWEVER, this will be the case only if it can be established that the defendant owed the plaintiff a duty to take reasonable care.
Looking at the case in terms of duty of care will be a way of restricting the charge of carelessness: the scope of negligence will be narrowed. If it can be shown that none of the defendants owed a duty to Sandra then negligence will not be provable: you cannot breach a duty that you do not owe.
How does Lord Atkin’s approach apply to the defendants?
You must take reasonable care to avoid acts or omissions that you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question.
- Gayle, because he hit the ball out of the ground?
- The Adelaide Cricket Club because they are the owner/occupiers of the ground the ball flew out of?
- The architects who did not provide any additional screening to stop balls from flying out of the ground?
- What about Adelaide City Council? Were they at fault for not installing a covered walkway adjacent to the oval?
- What about the young woman? Did she contribute to her situation by not wearing a crash helmet when in the vicinity during a match?
Work through each of the first 4 to see what conclusions you reach
It is safe to assume that in the majority of cases that deal with physical damage or injury there will be a duty to take care; this will be because reasonable foreseeability of damage is enough to give rise to a duty of care. But note the qualifier, ‘reasonable’ that is being applied to the noun ‘damage’.
In the health field, as already noted, there is a clear duty of care arising from the professional to patient/client relationship and the main issue will be whether the defendant has breached that duty by failing to take reasonable care. The cricket example that I have given you draws your attention to the first step: the existence of a duty at all.
Using the Civil Liability Act 1936 (SA)
Here are the pertinent sections of the Act, that ones I want you to be familiar with. And notice that the duty issue is not taken as a separate item; negligence is explained in terms of standards and precautions:
Division 1—Duty of care
31—Standard of care
(1) For determining whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
(2) The reasonable person in the defendant’s position will be taken to be sober unless—
(a) the defendant was intoxicated; and
(b) the intoxication was wholly attributable to the use of drugs in accordance with the prescription or instructions of a medical practitioner; and
(c) the defendant was complying with the instructions and recommendations of the medical practitioner and the manufacturer of the drugs as to what he or she should do, or avoid doing, while under the influence of the drugs,
and, in that event, the reasonable person will be taken to be intoxicated to the same extent as the defendant.
32—Precautions against risk
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if precautions were not taken;
(b) the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity that creates the risk of harm.
NOTE: If you apply the calculus of risk outlines in section 32 it seems very unlikely that any of the possible defendants in the cricket case were negligent.
Sections 40 and 41 are directly applicable to health professionals:
40—Standard of care to be expected of persons professing to have a particular skill
In a case involving an allegation of negligence against a person (the defendant) who holds himself or herself out as possessing a particular skill, the standard to be applied by a court in determining whether the defendant acted with due care and skill is, subject to this Division, to be determined by reference to—
(a) what could reasonably be expected of a person professing that skill; and
(b) the relevant circumstances as at the date of the alleged negligence and not a later date.
41—Standard of care for professionals
(1) A person who provides a professional service incurs no liability in negligence arising from the service if it is established that the provider acted in a manner that (at the time the service was provided) was widely accepted in Australia by members of the same profession as competent professional practice.
(2) However, professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.
(3) The fact that there are differing professional opinions widely accepted in Australia by members of the same profession does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section.
(4) Professional opinion does not have to be universally accepted to be considered widely accepted.
(5) This section does not apply to liability arising in connection with the giving of (or the failure to give) a warning, advice or other information in respect of a risk of death of or injury associated with the provision of a health care service.
Words or phrases that name important concepts
A legal obligation
Role related duties
Standards of care (for professionals)
Breach of duty
Lord Aitkin’s neighbor principle
The Civil Liability Act 1936 (SA) (carefully note the relevant sections)
 Lord Donaldson, in Re W  said that the legal reason (as distinct from the ethical reason) why health care personnel need to obtain consent from a patient for treatments is: ‘Because consent provides a legal defence against the charge of battery (trespass to the person) and any civil claim for damages that is likely to be involved’.
 ‘A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them’ (Le Lievre v Gould  1 QB 491, 497 per Lord Esher MR).