A Duty of Care

This term "Duty of Care" is often heard and used in a variety of settings and work situations. It refers to the legal responsibility of a provider/employer to ensure that they provide a service or workplace venue that is one that does no harm to the user of that service or employee or visitor in that venue. Essentially, it requires a person to ensure that all reasonable measures are taken to avoid being negligent in the products they supply, or the service they provide, or the place in which their product or service is provided. In the health services, this "duty of care" is taken seriously as often a failure in providing a reasonable and safe service could lead to significant physical, emotional or mental harm to persons who wish (or need) to use the services provided. Notwithstanding the preceding statement, duty of care can be somewhat problematic in the mental health field of health services. This is due to the fact that some persons are unwilling to be involved in the services provided. Others may lack the capacity and cognitive function to determine whether they require the services they may need. So what could be said about the principle of "duty of care" in such a situation. We know, for example, that persons with some mental illnesses such as, depression, anxiety and phobic conditions, are generally more willing to accept the response, care and treatment provided by mental health services. In such cases there is a duty of care to ensure that other clinicians already engaged in the care of the person are advised of the treatments given so that continuity of care is established, thereby enabling the timely and appropriate transfer of care to the person's usual clinician. In cases where a person is affected by a psychotic episode or a bipolar condition, then there is the potential that the person may not see the need for the duty of care of the treating service, nor the need for a continuity of care. This could be presumed by the treating team as being part of the lack of insight that often goes with the initial acute phase of the psychotic illness. In this case, the treating team needs to determine if their duty of care still exists even though it is not perceived as such by the patient. The basis for any decision about duty of care made by the treating team must sit with the principle of "reasonableness" rather than with the view of the patient. If it is deemed to be "reasonable" to consider the sharing of information with the patient's primary carer and/or treating clinician then, one might suggest, it would constitute a duty of care by the treating team to pass on the information that makes the transition and continuity of care in the patient's best interests.The bigger problem for those who work in the mental health field is when the patient refuses to have anything to do with the mental health service even though those who have clinical responsibility for them, or their primary carer, or family and friends, believe it would be in their best interest for them to have that contact. Without the legal status for the relationship between patient and service that is inherent in the Mental Health Act generally, and in the relevant Orders incorporated in the Act particularly, it becomes problematic as to what exactly is the duty of care of the mental health service.If a patient is non-acute and experiencing minimal effects of their mental illness and to all intents is functioning reasonably - is there a duty of care on the local treating mental health team to continue to engage with the patient, when there is no acuity of illness, and there is a stated request by the patient that the team disengage from their association with the patient. In such a situation it could be seen to be "unreasonable" behaviour on the part of the mental health service to continue to engage with the patient against their wishes, particularly when there was no legal requirement for them to do so. Taking this case as it is stated: what then if the patient, at a subsequent time, claims that that the mental health team failed in its duty of care by not preventing the patient going into a relapse some time later. Could this subsequent event be seen as a breach (by omission or commission) of "duty of care" by the mental health team. The view could be taken that if the person was an "active" client of the Mental Health Service then there might have been a breach of the duty of care. However, if the person was a previously discharged client from the health service (by the request of the client or the service) then one wonders if the service can have a duty of care to a person to whom they were not actively providing a service. The Mental Health Act 2007 seems to be silent on this matter. In fact, if "duty of care" was to be considered the patient/client in our scenario above would have had to be clearly mentally ill or mentally disordered at the time they came to the attention of the service, and their care was reactivated (even against their will) by use of the relevant sections in the Mental Health Act. It would seem then, that there is a dubious validity in the patient using a defence by saying that they have committed a serious criminal offence because of the failure of a "duty of care" by a mental health service that was not providing them with a service at the patient's own request. The Bowral Mental Health Service, like any mental health service, acts within the constraints of the Mental Health Act 2007. The Act is constructed to ensure the rights of all individuals are protected. It is sympathetic, both to those with a mental illness and those who are their primary carers or family members. One could suggest that most reasonable persons would acknowledge that a "duty of care" can only exist when the health service generally, and the mental health service in particular, are actually providing a service to the person with the mental illness.