Duty of Care.

What is the Duty of Care?
Duty of care is the obligation to exercise a level of care towards an individual, as is reasonable in all the circumstances, to avoid injury to that individual or his property.

The Duty of care is therefore based on the relationship of the different parties, the negligent act or omission and the reasonable foreseeability of loss to that individual.

A negligent act is an unintentional but careless act which results in loss. Only a negligent act will be regarded as having breached a duty of care. Whether an Act is negligent can only be considered in context. Liability for breach of a duty of care also very much depends on what the public policy is at the time the case is heard.

In Scotland this area of the law is called Delict while in England, Wales and Northern Ireland it is called the law of Tort. Delict and tort differ from the law of contract. Contracts generally specify the duties on each of the parties and the remedy if these duties are breached. Upon entering into a contract, the parties obtain specific rights and certain duties. In delict or tort these duties exist through the nature of the parties relationship regardless of the contractual obligations.


Under both jurisdictions, delict and tort try to strike a balance between the individual's wrongful conduct and compensating the victim for his loss.

Although much of the law of delict and tort has been developed by Courts, there are also now a number of statutory rules which apply for example to employment, disability discrimination, health and safety, data protection and occupier's liability.

Many of the general principles and the law of negligence are now more or less the same under the two jurisdictions but there are a number of differences between them, for example, the law of defamation in Scotland in comparison to libel and slander in England, and the law of nuisance.

Any relevant case law or decisions of any of the UK courts are often generally relevant and applicable to other similar situations regardless of where they are situated.

The basic principles of Duty of Care

The leading Scottish case of Donoghue v Stevenson 1932 SC (HL) 31 set out principles that still form the basis for establishing a duty of care under Scots and English law.

These are:

Does a duty of care exist?
This depends on the relationship between the parties. A duty of care is not owed to everyone but only to those who have a sufficiently close relationship. There is no liability if the relationship between the parties is too remote. Closeness in this context of course implies also "professional" relationship or responsibility.

Is there a breach of that duty?
Liability only arises if the action breaches the duty of care and causes a loss or harm to the individual which would have been reasonably foreseeable in all the facts and circumstances of the case.

Did the breach cause damage or loss to an individual's person or property?
Originally, when Donoghue was decided, the duty of care was thought only to be applicable to physical injury and damage to property, however this has now extended in some cases to where there is only economic loss.

In a Social Care context a Duty of care will usually exist where the Social Care worker has some professional or work responsibility for delivering a service to an individual. A breach would arise where a negligent act or omission to act resulted in harm to that individual and the harm was foreseeable.

Recommended reading: The Health and Social Care Hanbook - explains a rangge of health and Social Care law
Important Note: This note is not a definitive guide to the law relating to duty of care in either England and Wales or Scotland. It aims to give a general description only. Anyone concerned about Duty of Care or a breach of a duty of care is advised to seek legal advice.

Scottish Exec launches National Child Protection public information phone line.

The Scottish Executive has launched a 24 hr child protection information line designed to complement Scottish child protection services. The child protection information telephone line runs in tandem with a National Child Protection Website. (Child Protection Line Tel - 0800 022 3222)

The child protection line gives easy access to child protection services and allows people to share concerns about a child with the most appropriate local agency. People who call the confidential child protection line freephone number will speak to a trained operator.

Depending on the nature of the call, the operator may transfer the caller to the most relevant agency, or advise who the caller should speak to next

Scottish Executive Education Minister Hugh Henry said:

"All children deserve the best possible start in life but too many find their young lives blighted by abuse or neglect. For those vulnerable youngsters, it's vital that they get help as soon as possible. That means that we all have a duty to step in if we fear a child is in trouble. We must never assume that the authorities - police, social work or education - are already aware of the situation.

"However, we know there is often confusion about who to call or how to get help. This service will provide a single, nationwide access point, helping all of us to help vulnerable youngsters."

The introduction of the information line follows a pilot in the North-east of Scotland in 2005 and delivers a commitment from the Children's Charter to provide a nationwide, 24-hour child protection information service.

Inspector Peter Reilly, who is also the Grampian Police Child Protection Co-ordinator, said:

"The pilot was extremely effective in raising awareness that it is everyone's job to make sure that children are protected. The lessons learned from the pilot have been invaluable in preparing for the wider national response and the roll out of the national Child Protection Line. The NESCPC welcomes the national launch as a means of reaching a wider audience, further raising awareness and so helping to protect our children and young people."

The Scottish Executive's Child Protection Reform Programme budget will provide the set-up and running costs of the line which will be around £200,000 over three years

The Children's Charter, launched in March 2004, included a commitment by the Scottish Executive that they would 'work with agencies and existing helplines to provide a 24-hour national child protection service'.

The charter was part of the Executive's three-year child protection reform programme - a response to It's Everyone's Job to Make Sure I'm Alright, the child protection audit and review. A MORI poll undertaken as part of this review indicated that people didn't know what to do if they had a concern, how to report it and what might happen if they did.

It will also be supported by a poster campaign - in GP surgeries, community venues and other local outlets - and copies of the poster images are available.

Although the 24-hour information line will operate nationwide from the outset, publicity for the new resource will be rolled out in a phased way, concentrating initially on Midlothian, Highland, Edinburgh and the North-east (covering Aberdeen, Aberdeenshire and Moray).
Source:Scottish Executive

Scotland: Adult Support and Protection Bill approved

MSP's have approved a new Bill that offers greater protection to adults at risk of abuse.
The Adult Support and Protection (Scotland) Bill will give new powers and a statutory responsibility to local agencies to investigate any risk of harm or abuse to adults living in care homes or in the community.
Deputy Health Minister, Lewis Macdonald said:
"The passing of this new Bill sends out a clear message today - abuse of adults at risk will not be tolerated in Scotland.
"It's vital that we protect vulnerable adults from the risk of harm, whether this is caused by physical injury, neglect, sexual abuse or financial exploitation. This new legislation will mean that these often hidden problems can be tackled sensitively and constructively."
New powers remove uncertainties about the duty to act and will make it possible to investigate allegations of mistreatment. Assessment of the person and their circumstances can be carried out and appropriate support offered. In exceptional circumstances, a victim can be moved to a temporary place of safety and perpetrators excluded. Any actions taken must be to the benefit of the individual concerned.
Local councils and their partners are also placed under a duty to create Adult Protection Committees made up of a wide range of interested parties including social workers, health staff and the police to oversee adult protection work and to monitor its effectiveness and report their findings to Parliament on a regular basis.
David Manion, Chief Executive, Age Concern Scotland, said:
"Older people across Scotland welcome this long-awaited legislation which will make it a statutory responsibility to respond to incidents of harm or abuse of an adult who may be vulnerable.
"Scotland is now leading the way by legislating for improved safeguards and responses and is giving out a clear message that the mistreatment of any person will not be tolerated."
Part 1 of the Bill is concerned with adult protection. Parts 2 and 3 clarify aspects of both the Adults with Incapacity (Scotland) Act 2000 and the Mental Health (Care and Treatment) (Scotland) Act 2003 whilst also making some minor adjustments to the Social Work (Scotland) Act 1968.
Source : Scottish Exec

Elderly Care at Home gets EU boost

Care at Home for the elderly gets a significant boost with the announcement of
a consortium of 20 partners from European universities, public bodies and private companies to develop improved technology that should allow vulnerable older people to continue to live independently at home.

The Service Orientated Programmable Smart Environments for Older Europeans (SOPRANO) project is part-EU funded and aims to develop IT based assisted living services that promote the independence of older people, improve their quality of life and address the issue of ageing.

Mike Hodges, the Research and Development Director at Tunstall, the private company leading the research project, said: 'Against a background of accelerating demographic ageing across Europe, the latest telecare and telehealth solutions will play a pivotal role in helping to relieve some of the growing pressure on healthcare providers. Tunstall is proud to be leading this cutting-edge project which is addressing these key issues.'

The project will demonstrate how to use telecare technology, Information Technology (IT) and mobile communications to develop new community-based models of care and support. The research hopes to advance global knowledge in remote diagnostics, semantic IT, Radio Frequency Identification (RFID) location, and radar and integration architectures. 600 users will test the viability of these technologies in real homes.

The project will have two goals: to develop new ways of integrating assistive technology, telecare and telehealth solutions into users' homes to provide assistance; and to investigate the motor, sensory and cognitive difficulties experienced by older people and the best vision, voice or sensory-based means of communicating with users.

SOPRANO hopes to investigate the development of a fully networked home environment where integrated appliances support users in carrying out their everyday activities, and advanced telecare and telehealth solutions can monitor well-being to ensure that assistance is provided when required.

It is hoped that such low-level, round-the-clock telecare technology will offer a cost-effective alternative to traditional care, while also ensuring users get the support they need in the familiarity of their home environment.'

What such technology systems will never be able to offer though is real face to face meaningful human interaction and for many eldery people this can be the differenec between just living and enjoying a quality life. The development of these technology solutions to the problems of caring for the elderly must be supported and encouraged but we must never forget that the elderly, like the rest of us, need the warmth of human companionship and this is something that more traditional forms of care , at their best, have provided. The challenge is to develop systems of care which can meet these full range of needs.
http://www.tunstall.co.uk/

Elderly care: doctors discriminate says study

Half of doctors discriminate against elderly patients because of their age according to a study of elderly patients with angina. They were less likely to be prescribed a statin to lower their cholesterol, given appropriate tests, be referred to a cardiologistor or be offered surgical treatments. They were more likely to have current prescriptions changed and be told to come back later.

The survey questioned 28 GPs, 28 elderly care specialists and 29 cardiologists from southern England and the Midlands. The study of doctors treatment of the elderly (published in the journal Quality and Safety in Health Care)found patients over 65 were managed differently from younger patients.

In the study the doctors were interviewed about 72 fictional patients with varying degrees of heart problemsangina were presented using a specially-created computer programme.

Social Care Organisations fail to employ Learning Disabled

A survey of visitors at a Community Care Live event on Tuesday revealed that only one third of the social care organisations at the event employ people with a learning disability.

The survey was carried out by Avenues, a not-for-profit organisation that supports people with complex needs. It showed that 36% of visitors said they had people with a learning disability working at their organisation, 58% did not, 6% did not know.

9% thought their organisation had employed people with a learning disability in the past, and a number said their organisations did employ people with other disabilities, but not learning disabilities. Some claimed they had not had anyone with a learning disability apply, while others felt commercial firms such as supermarkets had a good track record in this area. A few were unsure what was meant by the term “learning disability"!

Avenues chief executive,Steve James said, “Avenues is proud to say it is in the one third of organisations that do employ people with learning disabilities. Our experience has shown that organisations have to be creative about the job opportunities they offer people with a learning disability and accept the fact that they may need quite a lot of support in the beginning. However the rewards, both for the employee with a learning disability and their colleagues, are worth the time and effort that goes in. I would strongly urge the social care sector to look at this area of recruitment. It would be a shame for social care organisations to be outdone by profit-making companies.”

Avenues is a not-for-profit organisation that provides support to people with complex needs, including learning disabilities, physical disabilities, autism and mental health problems. Our individualised support enables people to meet their needs and express their hopes and aspirations.

Avenues have over 900 staff supporting over 800 people every year, either in their own homes or in registered group homes. For more information about Avenues, visit: www.theavenuestrust.co.uk

CSCI star ratings

CSCI proposals for star ratings can be found here.

Plans by CSCI to develop a star rating system to judge care providers on how well they run their services were recently approved by CSCI Commissioners.
CSCI plans to invite people who use services, providers and councils to help them make sure the system is run properly and checked thoroughly by everyone involved.
A public consultation on star ratings was launched in August and nearly 3,000 people are reported to have supported the use of stars to describe ratings.

A survey of over 1,000 people found 96% want as much information as possible when making choices about services.
Dame Denise Platt said: “These new star ratings will be of significant benefit to people who use social care services, both now and in the future - so that they can make informed choices about the quality of care services in their area.”

CSCI will use a star ratings system ranging from 0-3 and use extra words such as poor, adequate, good and excellent to show what each star means.