Duty of Care v Duty to Do No Harm

Jan Charles 18/05/22 Dignity Champions forum

I personally believe that the Duty of Care and the Duty to Do No Harm should both apply simultaneously and neither in isolation from the other.
My experience is that the Duty to Do No Harm seems to have been sidelined in at least one incident I have been privy too. I feel that to ignore or sideline either of these values when dealing with patients or Service Users may be construed as an affront to their dignity by ignoring their Human Rights and Patients Rights under various charters and legislation

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mike stone 19/05/22

Hi Jan, I get a bit 'nerdy' on this topic, if I don't restrain myself.

However, setting aside that I think the concepts are a bit out-dated in legal terms (I think the correct situation is in essence that professionals must be 'professionally competent' and must also correctly apply the Mental Capacity Act and/or other relevant law), your basic point is spot-on - people have to apply ALL OF the relevant things, so to use your terms that is indeed 'Duty of Care and the Duty to Do No Harm should both apply simultaneously and neither in isolation from the other'.

Jan Charles 23/05/22

Hi Mike I had a verbal sparing round with my doctor who went against my express wishes. She agreed I was mentally fully Compos Mentos, but said she met her Duty of Care. My reaction was to mention her Duty to Do No Harm

I hope I would never treat my patients so. I believe ignoring their wishes, which I believe meant she did not need to undertake a home visit, and instead meant that
an ambulance crew unlawfully entered my home, trespassed upon my person and thus dented my dignity. Does this make sense?

mike stone 26/05/22

Hi Jan,

What I think, is that many HCPs struggle to allow capacitous patients to be autonomous, despite our law seeming to be very clear on the point. Doctors and Paramedics who mention 'Duty of Care' seem to me to be referring to something that no longer exists [in the context of treatment application - as opposed to during the administration of an accepted treatment {when in fact 'a duty to be clinically competent' would be more correct as a description}] but, I think they struggle because so much 'safeguarding' is thrown at HCPs these days.

Allowing mentally-capable patients to make potentially-harmful, or even self-destructive, decisions is part of the law: but at the same time, if doctors follow that law, they are then sometimes subsequently criticised.

To add to the problem, quite often 'the MCA gets shunted-off to local 'safeguarding/MHA' people' and that definitely doesn't help to promote 'capacitous individuals simply make their own decisions'.

mike stone 26/05/22

I commented on part of the draft MCA Code of Practice as follows:


The second sentence is using ‘best interests’ in the context of a capacitous person – that is never helpful. I suggest the sentence

Someone who is incorrectly assessed as lacking capacity may be denied their right to make a specific decision – particularly if others think that the decision would not be in their best interests or could cause harm.

Is changed to

Someone who is incorrectly assessed as lacking capacity may be denied their right to make a specific decision – particularly if others think that the decision would be unwise or could cause harm.

Jan Charles 26/05/22

Mike. I struggle sometimes to ensure patients are treated with dignity and respect. However. there are some good carers and nurses around.
I think one element of rudeness is when patients are being treated, especially intimately, and a crowd of medical and nursing students attend the session to watch without asking the patient. In these instances, capacity does not in my view come into the equation. A patient can feel abused with health staff watching.
When I trained many years ago, maybe even before you wore long trousers Mike;
we were told if we wanted to watch a procedure whether in theatre or on the ward, we must ask the patients permission.

mike stone 27/05/22

Hi Jan,

I feel sure that asking the patient's permission - for medical students to observe - is what is supposed to happen now. Whether it always does happen, and whether some patients would feel inhibited from saying 'no', is a different question.

As your post have pointed out, a lot of 'what should happen' is indeed in line with 'simple human dignity': perhaps pressure-on-staff in a hard-pressed NHS leads to corners being cut?

I might come across as 'too nerdy' but I only became involved in end-of-life debate about 2009. And then - as opposed to when you trained - the Mental Capacity Act had become a law (2005/2007), and it turns out that much behaviour was legally-prescribed by then. As the fastest way to get clinicians to change their behaviour, is probably (at least in my opinion) to make them think 'If I don't change my behaviour, then I might well end up in court', I tend to point at the MCA a lot.

There are problems, with 'conflicts between' various laws (I've always been suspicious of the 'discord between' the MCA and the MHA - and the Care Act might also have some 'challenges' if you start from the MCA, I suspect). And in reality, HCPs often tend to actually do 'what protects them'. As one of my contacts has pointed out, in many situations a judge is more likely to subsequently criticise a doctor for allowing a patient to exercise the patient's legal right to self-determination, than to criticise the doctor for over-riding that right 'in a confused/emergency situation'.

It is all very 'tangled'! But it is truly strange' if a doctor admitted '[you were] mentally fully Compos Mentos' but then treated you against your refusal - that is so far as I can see effectively a doctor 'admitting to doing something illegal'.

Sadly, there is no easy way of writing 'common sense and simple human decency' into the guidance/protocols which are created: common sense and simple human decency' are, I think, things which are almost impossible to 'define' - but, we can see when they are MISSING reasonably easily!