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The law in relation to safeguarding and the community nurse

02 June 2024
Volume 29 · Issue 6


In this article, Iwan Dowie discusses the role of the community nurse in relation to safeguarding. The key principles of safeguarding are discussed, and how the community nurse can approach various incidences where they feel their patients may be at risk.

Safeguarding is an important consideration for all nurses, especially community nurses who are best placed to identify safeguarding risks while visiting patients at home. The first key principle in relation to safeguarding is that there is no single act of parliament which deals with safeguarding, domestic violence or poor care and standards. Instead, there is a suite of legislation and case law to aid the community nurse in their role, as well as policies and professional guidelines. All healthcare practitioners, including community nurses, have a common law duty of care to their patients. As established in the case of Donoghue v Stevenson [1932], this includes meeting the test of foreseeability, in so far the community nurse can foresee that if taking no action in relation to a safeguarding event could lead to further harm to the patient. For example, a patient has bruises on her arm, and she cannot explain the reason for them. Her husband seems eager to tell you that she often has bruises as she stumbles a lot, so there is no need to contact social services. This might well be the truth; nevertheless, the community nurse has a duty of care to the patient to make a referral to social services for further investigation. If the community nurse decides to do nothing, there is a real possibility that the patient will continue to be at risk of significant harm. In JD v East Berkshire Community Health NHS Trust and other [2005], even though this case centred upon a young child, the court determined that in safeguarding cases, a duty of care was not owed to the parents but to the child concerned; therefore, even if the parents object to a referral or further investigations, the healthcare practitioner can over-ride their objections. Correspondingly, if a carer objected to the community nurse contacting social services with their concerns over the care provided to a patient, the duty of care is ultimately to the patient and not to the carer.

From a statutory perspective, laws have been tightened behaviour is an act or a pattern of acts of assault, threats, humiliation and intimidation or other abuse that is used to harm, punish, or frighten their victim. For example, a community nurse visits a home and the spouse seems to always talk over the patient whenever the patient is asked for information. If the patient does speak, the spouse retorts, ‘you are speaking nonsense again’. It might only be a one-off situation, but if you notice something similar occurring on subsequent visits, this may be an example of coercive and controlling behaviour.

Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capacities for personal gain, depriving them of the means needed for independence, resistance and escape, and regulating their everyday behaviour. Evidence in these cases can include copies of emails; GPS tracking devices installed on mobile phones; bank records; witness statements from family and friends; and evidence of isolation.

Safeguarding is not only concerned with a risk of harm from others, but also includes protecting patients from harming themselves, including serious cases of self-neglect (Cooper, 2017). Community nurses will often encounter patients who are living alone and may start showing signs of not coping with activities of living that would be normal for the patient.

However, making safeguarding decisions can be complex. On the one hand there is a need to protect patient confidentiality and autonomy, and on the other hand, the healthcare professional may have to make decisions that are sometimes in conflict with what the patient may want or need. The Care Act 2014 outlines six key principles to follow, which can help enable the community nurse to speak openly with patients of the importance of the nurses' role in safeguarding, so the patient can make an informed choice on whether to share safeguarding concerns with you. Working with patients to make a plan of care, including addressing safeguarding concerns is also a requirement of the Health and Care Act 2022. Conversely, the principles can assist the community nurse as to when is it is necessary to share concerns, even if the patient is refusing. The principles are as follows:

  • Accountability – that the adult trusts you with information that may include some evidence of abuse. You must make it clear to the patient that you have a duty to report and share the information you have heard with relevant agencies
  • Empowerment – that the patient who has suffered abuse can still have control of their situation, and the community nurse has a role to support and encourage the patient to be able to share details regarding their abuse and make decisions for themselves to manage their situation. However, if there is a serious risk of harm to the patient or to others, the community nurse needs to undertake an urgent referral to the appropriate authorities; for example, social services or the police if there is a high likelihood of severe harm
  • Partnership – it is important for community nurses to work in partnership with the local authority and other organisations and services, to seek advice, to detect and to report suspected abuse
  • Prevention – to act before any abuse takes place. For example, a community nurse is having a conversation with a carer who is expressing a desire to hurt a patient. Undertaking preventative measures could reduce the risk of harm. Such measures could include arranging some respite care for the carer so that they can take a break from their caring responsibilities as a potential solution to mitigate the risk. Remember, harm is not just physical but can also include emotional harm
  • Proportionality – if, as a community nurse, you observed or were told of some signs indicating controlling or coercive behaviour, yet the patient was not at a serious and immediate risk of harm, it may be more proportionate to refer to social services. It would probably be seen as acting disproportionally if the community nurse were to immediately call 999
  • Protection – being an ally to those who have experienced abuse or are being abused will allow you to support and represent them as necessary.

While the Care Act is enacted in England only, all four nations of the UK have enacted similar legislation in relation to safeguarding people; for example, in Wales, the Social Services and Wellbeing (Wales) Act 2014 has similar requirements and responsibilities for safeguarding as the Care Act in England, and in Scotland, The Adult Support and Protection (Scotland) Act 2007 protects adults who are unable to protect their own interests, and therefore, at increased risk of harm due to having a disability, mental disorder or illness.

Organisations and institutions can also subject people in their care to abuse (Chisnell and Kelly, 2019). Sometimes it is due to poor practices being tolerated as in the case with Mid Staffordshire NHS Trust, where patients were not being cared for properly and not being adequately fed. Despite many healthcare professionals, including nurses, raising concerns, there was an organisational failure to act on those concerns. The subsequent Francis Report made 290 recommendations, but in summary, there needed to be more openness, transparency and candour throughout the healthcare system. There is now a statutory duty of candour contained within regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (as amended). Care providers have a duty to act openly and transparently regarding the care provided to patients and must be honest when things go wrong and apologise, and support the patient. The Safeguarding Vulnerable Groups Act (SVGA) 2006 also places obligations upon organisations to safeguard children and vulnerable adults, to ensure additional checks are undertaken for those working with children and vulnerable adults, and to share concerns with the local authority. Since 2012, the Disclosure and Barring Service administers the barring scheme and people can be placed on either the barred children's list or the barred adults list, or in some cases, be placed on both lists. While these duties apply only to organisations, community nurses are employed as part of an organisation and therefore, will have an individual duty to uphold the statutory duty of candour on behalf of the organisation. Community nurses will also need to acknowledge that a professional duty of candour is a requirement under the preserve safety section of the Nursing and Midwifery Council's The Code (2018).

As part of their duties, the community nurse will, from time-to-time, encounter children and young people. The same principles apply, in that any suspected safeguarding concerns need to be shared. The main legislative frameworks in England for child safeguarding include the Children Act 1989, which sets out the various powers that can be enacted to protect children, and the Children Act 2004, which places an onus upon health and social care practitioners and organisations to share safeguarding concerns with each other. The death of Victora Climbié in 2000 led to the Laming Report in 2001, which found her death may have been prevented had various agencies shared their concerns and worked more effectively together. It is also mandatory under the Female Genital Mutilation Act 2003 for regulated healthcare professionals, including registered community nurses, to report to the police if they are informed that a child has undergone female genital mutilation. In Wales, there is also a duty to report to the local authority as outlined in the Social Services and Wellbeing Act (Wales) 2014.

Safeguarding is not easy and requires careful consideration by the community nurse as to what action to take. In most cases, especially where there is no risk of immediate and serious harm, it is advisable to work with patients to allow them to make decisions that are appropriate for them, but for very serious cases or situations where a patient is very likely to suffer serious and significant harm or to cause serious or significant harm to others, community nurses need to take immediate actions. One of the key principles outlined in the Care and Support Statutory Guidance (Department of Health and Social Care, 2017) is that ‘no professional should assume that someone else will pass on the information which they think may be critical to the safety and wellbeing of an adult’. The onus is upon all community nurses to share information with the local authority; for example, via social services, or with the police if the matter is very serious.