Nursing, Neglect and Negligence

Patient neglect by nurses is an issue of increasing public concern in the UK and Europe, yet whilst it often generates a great deal of anger from the patient and thier families, the reasons for the negligence remain poorly understood. Patient neglect is usually found to have two very different aspects and seperating these off is often difficult for the relatives of those who have suffered it.

First, there is what some commentators have called procedural neglect. This really, refers to technical failures of staff to achieve “good” objective standards of care. This is the easiest to understand, if wound dressings have not been applied or applied poorly it is a technical fault. If a wound is not healing then clearly a refferal is warranted rather than waiting for sepsis to set in. We cannot excuse the nurse for missing these things, we may even be angry about it but it is nonetheless a technical error, it is an error in training or it is a symptom of poor healthcare administration or systems but it is nonetheless negligence pure and simple. There is no intention to do harm, it is either accident or it is plain and simple neglect.

The second, issue though is much more likley to cause outrage from a patient or thier family but is much harder to understand it is what is often reffered to as “lack of care”. It refers to behaviour which leads patients to believe that staff simply do not care about the paitent at all. These callous attitudes seem somehow magnified when they come from nurses as of course, we consider those called to nursing as being those suited for the “caring profession”.

The causes of patient neglect then are either “technical” (external factors) or “professional” (internal factors) – regardless of which they frequently relate to organisational factors (high workloads, Hosptial targets, behaviours of managers, staff, burnout), and the relationship between carers and patients.

Are things getting better?

In my professional career as a lawyer over the last 25 years, I have witnessed scandal after scandal in the NHS where nurses have shouldered the blame for organisational and structural failings and seemingly nobody has ever tried to differentiate the two different issues that are mentioned above. Why? I suspect that ultimately, high-profile scandals have made patient neglect a key issue for policy makers and policitions. It is the political equivelent of “goal hanging”. Ultimately waiting for a scandal to break and then piling in with criticism is likley to go uncriticised by the media, we all become so infuriated and outraged by the story we forget about the cause. Every commentor seems focused only on outdoing each other in the depth and obviousness of thier fury.

Regardless of policitical affiliation, politicians can flex thier publicity wings by being outspoken in such scandels and promising to “sort things out” – typically what happens next is that there is some inititiave to reintroduce even more beuracratic red tape into the healthcare systems to ramp up patient safety but the result of that is of course, nurses spend more time filling out forms than actually doing nursing. They become more distanced from thier job and the culture of indifference deepens. The real damage is the increasing media toxicity that results from this downwards spiral as the narrative which seeks to blame rather than understand why reaches a creciendo. In each of these scandals some poor patient pays the price for a highly politicised healthcare system.

So what can be done?

Seemingly nothing, the cycle of pressure, error, and then blame, continues unabated and in fact has done since the NHS was incepted 20 years before my birth. Looking at the siutaton as a lawyer as objectively as I can, I would at least have some satisfaction if the cycle of blame could be said to be lengthening between issues of scandal?

Well, if we accept as a population that procedural neglect is made up of failings in care that fall short of objective professional standards. Such as, failing to feed, hydrate, turn or clean a bed-bound patient, then it is at least it is possbile to catagorise the various situations. This may be the first step towards cure and possibly set things on a different course.

Procedural neglect is ‘system-indicated’, in the sense that it is defined by a violation of a procedure or standard. It is focused on behaviours which can be objectively measured, and not perceptions of the attitudes ‘behind’ the behaviours, or patient assessments of the quality of their care.

Caring neglect alternatively, refers to failings in care that are below the threshold of being documented, yet lead patients, family and the public to believe that staff are unconcerned about the emotional and physical wellbeing of patients. It is undeniably more subjective. Caring neglect might include not being helped to eat, not being treated with dignity and respect, or having concerns dismissed. None of these behaviours are likely to violate a regulation or protocol, they are not going to result in a legal claim.

Nevertheless, patients may see them as indicators of caring neglect. At present such concerns are typically dealt with on ward or by an appointed nurse with responsiblity for “complaints” they are either upheld or dismissed and they seem to have little bearing on the future running of the institution. They are increasingly seen as part of overall quality initiatives and not a factor of overall patient safety.

The suggestion therefore is to approach the division between actual technical failure and lack of care as a definable and measurable one. Not by trying to define them both but by recording them all and defining those failures which are procedural / technical and then labelling all of the others as interpersonal care. It is not my intention to suggest that the latter is less serious or should not be researched and defined, only that at as a pragmatic measure, it is easier to simply deal with procedural errors first. There is also a side effect of such an approach and that is that the redress systems in place simply dont fit the two models of neglect. By seperating them, the obvious need for a third way may allow it to actually manifest.

Procedure neglect and caring neglect are adminttedly not mutually exclusive. For example, long-term caring neglect can become procedure neglect (e.g., repeatedly neglecting to help feed a patient will result in harm), and if patients or family are aware of the violation of a procedure they may take it negligence.

That is the only time that the law can address both issues. In most cases, a claim can be actioned only if injury or neglect has occoured which was avoidable, however what about hurt feelings? What about the loss of patient dignity? The law is almost without answer to these points. How can they be addressed: by disciplining the nurse? By retraining them or demoting them – will that work? Probably not, in terms of apology will that have any effect, will it make the situation more tolerable for the patient will they be willing to forgive and forget?

I suspect that the law is not the right place to address these concerns; I do believe that alternative dispute resolution may be. I believe that ADR via mediation may result in a signficant change in the positon regarding these complaints partly because it takes the whole thing out of the arena of “complaint” or “claim” and into a more suitable venue, one where the parties can speak freely. Should there be some compensation – yes, should there be lawyers NO not on either side, this is a matter for the patient the nurse and the mediator. The whole point of ADR must always be to keep lawyers in the car park or better still back in thier own offices.

Will that have any effect?

Well thats not clear, certainly in procedural neglect it can be completely invisible to patients and families ( incomplete or badly recorded patient notes are rarely viewed or understood by the family but are essential for good healthcare) and thus cannot lead to patients perceiving this technical neglect. Indeed, some instances of procedure violation may be taken, confusingly so, by patients to indicate caring (for instance allowing patient relatives to break visiting hours rules or to skp medicaiton because of the side effects). The key difference is that procedure neglect is assessed from an institutional standpoint while caring neglect is assessed from a patient standpoint.

From a legal perspective procuderal or technical neglect is likley to result in a actionable claim, however, deficits in nursing care, are likely to be simply passed over by most lawyers as a “complaint”. ADR is a suitable venue for the latter but not on a combined issue or one of pure technicallity.

Will any of this happen – I believe it will, ADR and the rise of mediation as a means of addressing claims is on the rise, if we extend this into a paid system of redress for lack of care (excluding technical negligence or procedural neglect) then we may finally see faith slowly returing to the nursing profession by the patients. If this continues to be ignored then a wedge will eventually be driven between these parties and that can only ever result in the defeating positon of protective medicince.

Published by Orange Law

A UK based Solicitor Advocate and Clinical - Dental - Surgical Specialist Outsourcing Legal Service.