General /

Wikipedia defines Duty of Care, in tort law, as a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability.

The Legal Dictionary defines duty of care as a requirement that a person act toward others and the public with watchfulness, attention, caution and prudence that a reasonable person in the circumstances would. If a person’s actions do not meet this standard of care, then the acts are considered negligent, and any damages resulting may be claimed in a lawsuit for negligence.
In plain language, in human service settings i.e. hospitals, home health, education, residential settings, duty of care relates to actions or failure to act in accordance with the individualized plan of care of the person receiving services, duty of care refers to the professional obligation service providers have toward the individual receiving the services to act in accordance with the individualized plan.

If a service provider does something that was not prescribed in the individuals plan of care, or does not do something that was prescribed in the individual’s plan of care and an injury occurs, the service provider may risk a liability lawsuit.

Additionally employers have responsibilities under the Occupational and Safety Health Administration (OSHA) to provide for the health and safety of their employees as well as visitors to their premises, i.e. customers, suppliers and the general public.

Each U.S. state is free to develop its own tort law under the Tenth Amendment, however there are several tests for finding a duty of care in United States tort law. When a case is filed in court, in order to determine whether or not there was neglect of duty of care, the court will attempt to establish:
• that the claimant was the responsibility of the service provider (under their care and treatment),
• there was a failure on the part of the service provider to do something they were supposed to do or if they did something they were not supposed to do according to the individual’s plan of care.
• if there was a breach of the duty of care,
• if there was an injury, and
• if there was a direct causal relationship between the injury and the breach of duty of care.

In establishing these facts, the court will consider federal laws that govern the practice of care for that service provider in that setting, state regulations, professional standards, staff training, the individual plan of care as well as the organization’s policies and procedures (which should delineate how procedures will be carried out). These legal and liability issues are explored in more detail in Chapter 6 of the Mandt System.

Areas that frequently typically lead to issues related to duty of care include:
• Failure to adequately train and orient staff prior to giving them responsibilities.

Often when entities are at risk of not meeting staff-client ratios, new employees receive responsibilities prior to completing orientation or training in that particular area.
• Failure to provide an adequate number of appropriately trained staff to meet the needs of individual receiving services.

Circumstances where individuals receiving services require close observation (one to one or even two to one) to ensure the safety of others or themselves require increased numbers of staff. Vacant positions or staff absences may lead to a staff shortage often addressed by available staff receiving multiple and conflicting responsibilities simultaneously (i.e. one to one with an individual receiving services and also supervising the bathing or dining area).
• Failure to clearly indicate who is responsible for carrying out the actions in the plan of care.
• Failure to adequately document that the task was achieved.
• Failure to perform a task in accordance with training.

An alternative to giving inadequately trained staff responsibilities for which they are ill prepared is to use home health or temporary agencies to fill in the staff shortage. However those individuals are held to the same standard of training and orientation as a full time staff. To address training, the service agency might develop a contract with the home health or temporary agency to develop a pool of individuals who are annually oriented to the agency or system and can be called upon to fill in when there is a staff shortage.

Duty of care issues may occur simply due to a failure to clearly communicate or understand how and when to perform tasks, coverage assignments, or how to document completion of tasks. Often employees are self conscious or embarrassed to request clarification, particularly in front of others. The agency must develop a culture where employees do not feel intimidated to ask clarifying questions.

Policies, procedures and individualized plans should be clear and specific in determining tasks, assignments, a timeframe in which the task is to be accomplished and how staff should document the completion of the assignment. The service agency should encourage clear communication and for staff to raise questions to ensure they understand the assignments or instructions given them.

From a more humane perspective, one way to better ensure the duty of care is adequately addressed, is to use empathy, walk in the shoes of the person receiving services and treat the person the way you would prefer to be treated. Keep in mind that caring family members often reluctantly give over their loved one to the care and treatment of professionals they believe are more adequately prepared to take care of them. We should treat their loved ones as we would our own, not only fulfilling the letter of the law (or plan) but also the intent of the plan, to care for and about the person, treat them with dignity and respect, engage them in their treatment by listening and acting on their preferences and explain why that is not possible.

Aaryce Hayes – COO The Mandt System

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