Duty of Care: Public Health and Environment - Coursework Example

Enrolment No: Duty of Care: Public health and environment Public Service and health professionals who have involved themselves in the lives and service of the people, clients or patients need to exercise proper professional care in the very way they have carry out their duties or responsibilities (Unison, 2003). The term care especially professional care is both an ethical and a legal issue. The duty of care has been given a legal luster and has been termed as a law documenting all reasonable steps that must be taken to maintain health services and safe waste management policy. The objectives of this concept are: 1. to gain an understanding of the legal basis of the duty of care in a health/biomedical science context; 2. to learn about how the duty arises, how it is discharged, and the legal consequences when the duty is breached; 3. to consider the relationship between the legal concept of duty of care and the ethical principle of non-maleficence (Unison, 2003). Professional negligence or breach of the professional duty of care is one of the areas of greatest importance for health workers and the way they work. The possibility of legal action for breaches of professional care is very real. The Tort of Negligence is where professional responsibility is ultimately tested in the courts of law. Negligence may be the legal consequence of a breach of the ethical principle of non-maleficence - the duty to do no harm (Unison, 2003, Office of Public Sector Information [OPSI) (2005). It is worth remembering that a health care can be acting ethically in that she or he is following the principle of beneficence - of doing good - but nonetheless causes the patient harm which is actionable in negligence. In part the explanation lies with the fact that in the first instance the law is not concerned with motives or good intentions, but the consequences of actions. In the way this has been interpreted in every day health care practice, at least in some quarters and particularly in the U.S., is that good health care practice and ethical health care practice are largely questions of how to avoid legal liability (Unison, 2003). Technically, with respect to social and professional responsibility in a condition of public health and environment protection, the duty of care applies to anyone who produces or imports, keeps or stores, transports, treats or disposes of waste. It also applies if you act as a broker and arrange these things. It is household, commercial or industrial waste. It can be from a house, school, university, hospital, residential or nursing home and shop (Unison, 2003; OPSI, 2005). Duty of care: the Department and by agencies engaged by the Department: The law of negligence affects the way the Department and agencies who deliver services on behalf of the Department go about providing services to various parts of the community. It sets minimum standards for the Department and those agencies in the way that they deliver these services. The Department staff may know of this concept as ‘duty of care’ (Unison, 2003). Most of the Department’s clients are vulnerable in some way because of their age, state of health, social circumstances or other factors. This vulnerability affects the care the Department must take to avoid being found legally liable for negligence. The Department contracts with many agencies and community organizations to deliver many of its services. When these services are contracted out by the Department, the Department remains responsible for the services to clients. The Department is not able to delegate its responsibilities in relation to statutory clients. These responsiblities give the Department a non-delegable duty of care. This is dealt with later in these guidelines (Unison, 2003). The law of negligence does not create ‘no-win’ situations for anyone. Contrary to popular misunderstandings, it does not impose impossible burdens upon staff or require anyone to be perfect. Nor does it expect anyone to be clairvoyant. The only ‘burden’ imposed on the Department and its agents by the law of negligence are the requirement to act reasonably. If it does not act reasonably and people are injured, the Department will be held accountable. It is in the interests of its clients, as well as consistent with its legal obligations, that the Department behaves reasonably in delivery of its services to avoid injury to those clients (Unison, 2003). Who this policy applies to This policy applies to all the Department employees and all agencies which provide services for the Department, whether or not they work in direct contact with clients. Employees must comply with the law of negligence in all aspects of their work. There are three parts to the definition of negligence and all three elements must be present in any situation for the Department to be considered negligent by a court: 1. Duty of care. The Department must owe a duty of care to a particular person. 2. Breach of duty of care. The Department must have done something a reasonable person would not have done in a particular situation or omitted to do something which a reasonable person would have done. 3. Injury. Some harm must have been caused to the person because of the Department ‘s unreasonable action. A duty of care is a duty to take reasonable care of a person. The Department owes a duty of care to anyone who is reasonably likely to be affected by the Department’s activities. These may be: Clients. The families and careers of clients. Certain groups of people in the community. Department staff must take reasonable care to avoid causing injury to each of these categories of people in the delivery of its services. Duties of care can be owed by different levels of Department employees in any particular situation. Program directors, regional directors, local managers, supervisors, direct care employees and health professionals will all owe duties of care to the three groups of people listed (Unison, 2003 ; Ryerverson University, 2003). Breach of Duty of Care A duty of care is breached if a person behaves unreasonably. Failure to act can also be unreasonable in a particular situation. A duty of care can be breached either by action or inaction. The reasonableness of what a person has done, or not done, is assessed by considering how a hypothetical reasonable person would have behaved in the same situation. If the person’s job requires special skills or training, the hypothetical person will be assumed to have the same skills or training (Unison, 2003). This means that a manager’s actions will be measured against the actions of a reasonable manager, the actions of a protective worker will be judged according to those of a reasonable protective worker, the actions of a health professional will be judged according to those of a reasonable health professional and so forth. Judging how reasonable a person’s behavior has been depends in part on the type of relationship between the two people. The closer the relationship between the Department and the person, or the more dependent the person is on the Department for their welfare, the more the Department will be required to do to ensure the person is not injured by its actions (Unison, 2003; Ryerverson University, 2003). What is considered reasonable will depend on all the circumstances. What is reasonable in one situation will not necessarily be reasonable in another. There cannot be a complete set of ready-made answers to all the dilemmas and situations that could arise in any program area. An important element in determining reasonable behavior is the knowledge of the situation. The Department may have information about particular clients or premises. If that knowledge is authorized and available to the particular area of the Department it must be taken into account in considering what action to take. It is no defense to say the particular employee was unaware of Department information (Unison, 2003). Injury: Reasonable and Harm Harm is recognized by the courts have been physical injury, nervous or emotional shock and financial loss. Unless a person suffers an injury of one of these kinds, there will not have been any negligence by the Department as far as the law is concerned. The harm must be caused by the unreasonable actions of the Department for the Department to be liable for negligence (Armor Group, 2006). While there are no predetermined answers to questions about whether or not an action is reasonable, there are a number of factors which must be considered each time an employee makes a decision. Staff must use their professional skills and experience to decide the weight to be given to each factor and to make a final decision about the most reasonable action in a particular situation (Unison, 2003). The factors to consider are: The risks of harm and the likelihood of the risks occurring. The sorts of injuries that may occur, and how serious they are. Precautions which could be taken. The powers which Department employees have. The usefulness of the particular activity which involves risks. Any statutory requirements or specific directions from the Department. Current professional standards about the issue. Any other factors relevant to a particular situation must also be considered (Unison, 2003). This list of factors must be used by Department staff to ensure reasonable decisions are made by the Department. No single factor can be relied upon by itself to justify acting in one way rather than another. The Department must act reasonably in the way it uses its powers and the consent of a client does not alter this. Staffs are expected to take steps to avoid reasonably foreseeable risks of injury. No one will be found negligent for failing to prevent a completely far-fetched or improbable risk of harm to a client, but employees will need to assess the risks of particular activities sensibly (Unison, 2003; Armor Group, 2006). Reference Office of Public Sector Information [OPSI) (2005) The Waste (Household Waste Duty of Care) (England and Wales) Regulations 2005 http://www.opsi.gov.uk/si/si2005/20052900.htm Ryerverson University (2003) Environmental Health and Safety System EHS policy statement and supporting EHS programs Unison (2003) The Duty of Care: A handbook to assist health care staff carrying out their duty of care to patients, colleagues and themselves Armor Group (2006) Duty of care to employees on deployed operations: An Armor Group perspective Read More