duty of care - Action on Elder Abuse

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duty of care - Action on Elder Abuse

A UNISONHANDBOOKTHE DUTY OF CAREA handbook toassist healthong>careong> staffcarrying outtheir ong>dutyong> ong>ofong>ong>careong>to patients,colleagues andthemselves

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookContentsChapterPreface 2PageCONTENTS1. The purpose ong>ofong> the handbook 32. What this handbook covers 63. NHS changes and the ong>dutyong> ong>ofong> ong>careong> 84. The contract ong>ofong> employment and the ong>dutyong> ong>ofong> ong>careong> 105. The ong>dutyong> ong>ofong> ong>careong>, the public interest and Codes ong>ofong> Prong>ofong>essional Conduct 136. Statutory rights and duties which may conflict with management instructions 317. Clinical governance and the ong>dutyong> ong>ofong> ong>careong> 388. How NHS employers are supposed to treat staff 419. The pressures on NHS managers and on staff raising concerns 4310. How management instructions to work unsafely, or unsafe practices, 47can be challenged.11. Influencing Health Service modernisation 59Appendix 1. A checklist for safe services 61Appendix 2. Some pro forma letters 63Appendix 3. The Code ong>ofong> Conduct for NHS Managers 67Appendix 4. References 69Appendix 5. Links and further reading 711

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookPrefaceThe Duty ong>ofong> Care is intended to assist all those seeking guidance on how best to question andchallenge unsafe practice in the NHS. It will also be invaluable to those seeking to influencenew plans to improve services and change staff roles.The Duty ong>ofong> Care builds on previous work by UNISON such as our “Be Safe” campaign toassist nurses, midwives and health visitors to highlight concerns about unsafe practice. TheDuty ong>ofong> Care is much wider in scope, however, and seeks to give guidance to staff across allhealthong>careong> occupationsIt is written as an authoritative guide to legal and prong>ofong>essional conduct issues for all healthong>careong> staff. It places those issues alongside the framework ong>ofong> health and safety statute and caselaw. It is written in a way that is applicable to all NHS staff and to those in the private sectorwho have concerns and wish to find an effective and responsible way ong>ofong> voicing them.It sets out the principles that should underpin the approach ong>ofong> all in the NHS - including themost senior managers - to service delivery, the management ong>ofong> change, the treatment ong>ofong> staff,and the creation ong>ofong> a safe working environment.This handbook is the workplace manual to complement UNISON’s Positively Publiccampaign in favour ong>ofong> high quality public services. It should help UNISON members to beeven more effective as the guardians ong>ofong> safe, effective and accountable health services.Karen JenningsNational Secretary (Health)January 20032

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook1. The purpose ong>ofong>this book1. THE PURPOSE OF THIS BOOK1.1. The central issues.This handbook is designed to give practicalguidance to health service staff at all levelsand in situations where there may be aconflict between:● what their employer expects them to doand● what they believe is in the best interests ong>ofong>patients, the health ong>ofong> colleagues orthemselves, or the wider public interest.These situations might include:● being expected to undertake an excessiveor unsafe workload,● being asked to implement a questionabledelegation ong>ofong> tasks or roles,● being told to follow potentially unsafeinstructions,● being expected to work in an environmentunsafe for staff or patients,● working in a workplace where a climateong>ofong> fear prevents proper concerns aboutpatient ong>careong> or staff safety being raised● being asked to collude in inappropriateallocation or reduction ong>ofong> resources not inthe best interests ong>ofong> patients.The handbook is written for all healthservice staff - registered prong>ofong>essional or nonregistered,managers or not, clinicaloccupation or not - who find themselves inthese and similar situations.There are differences between thecircumstances facing a state registeredprong>ofong>essional and someone who is not, butthe key themes are the same. The maindifference is that a registered staff memberfaces the additional issue ong>ofong> what theirstatutory prong>ofong>essional body might expectthem to do in the interests ong>ofong> patients. This isexplored further below.Health service “modernisation” is occurring3

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookat a time when there remain substantial gapsin staffing, shortcomings in local leadershipong>ofong> the NHS, and a reluctance to involve staffand their trade unions adequately in policydevelopment and implementation. Yet withthe introduction ong>ofong> Clinical Governance, aCode ong>ofong> Conduct for NHS Managers, and agrowing public awareness ong>ofong> the rights ong>ofong>patients and the rights ong>ofong> employees, thereare an increasing number ong>ofong> situations whereclear advice is needed to ensure that safe andeffective practice is the priority.The handbook is intended to assist goodpractice and improve services by givingguidance on:● what to do in urgent situations wherethere may be a conflict between, on theone hand, what the employer immediatelyexpects ong>ofong> the employee, and, on theother, the individual employee’s ong>dutyong> ong>ofong>ong>careong> to patients, colleagues and theiremployer, and the public interest.● what to do when there are longerstanding concerns such as excessiveworkload, inappropriate delegation ong>ofong>tasks or roles, or a bullying culture whichmakes raising concerns difficult.● how to ensure that proposals for changingservices, service delivery or the availableresources tackle concerns about unsafepractice effectively and positively, so thatthe improvement ong>ofong> services and safepractice go hand in hand, rather thanbeing in conflict. We will want toinfluence those discussions positively andin partnership with management.1.2. Better treatment ong>ofong>staff means betterhealthong>careong>We do not share the view held in somequarters ong>ofong> the media and politics thatimproving the treatment ong>ofong> staff is somehowat the expense ong>ofong> better treatment ong>ofong>patients. In fact, the opposite is true.Recent research (1) confirms that excessiveworkloads, the imposition ong>ofong> inappropriatetargets, a failure to value staff, and theinability ong>ofong> staff to do the job they believeneeds doing, are crucial factors in drivingstaff out ong>ofong> the NHS. If staff are really tohave some ownership ong>ofong> NHS targets and bepart ong>ofong> decision making, then the issuesdiscussed in this handbook have to beintegral to those discussions.Central to our approach is a belief now4

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookendorsed by ministers and by academicevidence, that better treatment ong>ofong> staff willdirectly benefit patient ong>careong>.(2) This mustinclude ensuring they are able to highlightand pursue legitimate concerns.1. THE PURPOSE OF THIS BOOKThis handbook is written to enable UNISONmembers and others to be the best possibleguardians ong>ofong> high quality, effective and safeservices, valuing both patients and staff.After all, the one million health service staffand their families are themselves users ong>ofong>NHS services.5

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook2. What thishandbook coversChapter 3 summarises some ong>ofong> the pressuresNHS staff are currently under which mightinfluence this conflict - more flexibleworking, changing services and occupationalboundaries, excessive workloads,inappropriate management culture, cover-upsand secrecy, and tensions with the privatesector or self-employed GPs.Chapter 4 sets out the legal rights andobligations ong>ofong> employees and employers.Chapter 5 explains the ong>dutyong> ong>ofong> ong>careong>, thepublic interest, and the role and status ong>ofong>Codes ong>ofong> Prong>ofong>essional Conduct, and Healthand Safety law. It explains what standardsstaff are expected to work to, whatconstitutes negligence, and what principlesmight help resolve potential conflictsbetween management instructions and thevarious duties owed to patients, colleagues,oneself and the wider public.Chapter 6 sets out some statutory rightswhich might conflict with managementinstructions in respect ong>ofong> safe working or theworking environment.Chapter 7 summarises clinical governance asa crucial approach linking the treatment ong>ofong>staff with the treatment ong>ofong> patients.Chapter 8 summarises the Human Resourcesstrategy NHS employers are expected to befollowing which should have pre-emptedmany ong>ofong> the problems we identify.Chapter 9 summarises the pressures on NHSemployers which may affect how theconflicts this handbook discusses are dealtwith.Chapter 10 sets out the legal rights ong>ofong> staffwhere conflicts exist which may be caused bythe acts or omissions ong>ofong> employers or staff. Itsets out some principles on how to resolvethem. It then sets out in more detail how6

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookSummaryThe pace, complexity and scale ong>ofong> the changes in service provision and theNHS workforce are breathtaking. These changes mean it is essential that allNHS staff are involved in discussions about developing new services orchanging existing ones. There is no doubt that creating a healthy and safeworking environment, in which staff are respected and encouraged todevelop their skills and knowledge, improves patient ong>careong>. To succeed in this,the ong>dutyong> ong>ofong> ong>careong> which the individual member ong>ofong> staff owes to patients,colleagues, their employer, themselves and the public interest, mustunderpin both service delivery and development.3. NHS changes andthe ong>dutyong> ong>ofong> ong>careong>3.1. The pace and scale ong>ofong>changeConsideration ong>ofong> how to challengepotentially unsafe working practices isespecially important because ong>ofong> the radicalchanges being introduced in working andclinical practices in the NHS. The statementbelow, drawn up by one ong>ofong> the governmenttaskforces established to help implement theNHS Plan in England, summarises some ong>ofong>them. These ideas are developed further ineach country in the Human Resources (HR)plans produced on a regular basis. (3).Examples ong>ofong> the kind ong>ofong> developments likelyto become common are readily available (4).3.2. The pressures on staffThe changes in the NHS, especially thoseintroduced whilst there are still staffshortages, and immense pressures onmanagers to meet targets and achieve a good“ The vision ong>ofong> the future for the NHS is one ong>ofong> fast, responsive, high quality servicesdelivered by multi-disciplinary teams in which the contribution ong>ofong> each member isrecognised, valued and rewarded.There will be more staff, working in better conditions, with more time for direct patientong>careong>, for service planning and personal development.There will also be a transformation in the way staff work. Greater flexibility in roles andresponsibilities will allow patients to receive high quality ong>careong> from the most appropriateprong>ofong>essional. There will be less delay, greater continuity ong>ofong> ong>careong> and a more personal,responsive service. The shift to multi-disciplinary team working will be accompanied by8

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookmuch greater use ong>ofong> integrated pathways and ong>careong> protocols, developed by staff with theinvolvement ong>ofong> patients and ong>careong>rs.● Doctors will spend a greater proportion ong>ofong> their time on direct patient ong>careong>,concentrating expertise on patients whom they need to see and spending more time withthose patients; GPs will be able to develop specialist skills and take referrals from theircolleagues● Nurses, midwives and allied health prong>ofong>essionals will have a greater range ong>ofong>responsibilities for decisions about patient ong>careong>, from diagnosis through development ong>ofong>a treatment plan to discharge● Health ong>careong> assistants and other support workers will have expanded roles in raisingstandards ong>ofong> basic patient ong>careong>, improving communications with patients and ong>careong>rs andproviding support for clinical activities within multi-disciplinary teams; and will also beable to develop into new roles● Staff in non direct ong>careong> areas such as cleaning, portering, catering and administrationwill be able to develop in their existing roles, with their contribution recognised andvalued, and will have the opportunity to move into health ong>careong> roles with appropriatetraining.”NHS Workforce Taskforce Vision January 2001public prong>ofong>ile, will require vigilance fromstaff at all levels if the ong>dutyong> ong>ofong> ong>careong> tomany (but not all) ong>ofong> whom have littlemanagement experiencepatients, staff and managers is to besafeguarded.● the role ong>ofong> the private sector within NHSong>careong> has grown without ensuring its● it is now accepted that there are excessiveworkloads and inadequate staffing levelsstandards, values, safety and culture areas good as those ong>ofong> the NHSin many occupations (5)● a continuing gap between what HR● increasing evidence ong>ofong> the scale ong>ofong>bullying, harassment and violencepolicies are supposed to be and what isactually happeningtowards staff has emerged in recent years(6)● the poor working environment andhealth and safety practice highlighted a● despite strictures by ministers aboutfew years ago and slowly improving (7)openness, local whistleblowing policies,clinical governance and the PublicInterest Disclosure Act, there is still a● insufficient attention paid to the hardevidence that good employment practicesimprove patient outcomesclimate ong>ofong> secrecy and intimidation inmany organisations, making it moredifficult to flag up concerns about theduties ong>ofong> ong>careong> or the public interest.New ways ong>ofong> working underpinned byemployment security and safe workingpractices are a potential win-win for● the rapid changes in primary ong>careong> havegiven a greater management role to GPs -patients, staff and the NHS. We are still along way ong>ofong>f that goal in manyorganisations.3. NHS CHANGES AND THE DUTY OF CARE9

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookSummaryThis chapter considers the potential forconflicts between management instructionsand obligations arising from the ong>dutyong> ong>ofong> ong>careong>and public interest, the obligations arisingfrom Codes ong>ofong> Prong>ofong>essional conduct and thestatutory rights and obligations ong>ofong>employees.4. The contract ong>ofong>employment andthe ong>dutyong> ong>ofong> ong>careong>Fig.1. Potential conflicts with management instructionsStatutory rights and dutiesManagement instructionsProng>ofong>essional Code ong>ofong> ConductImplied duties ong>ofong> ong>careong> and to the publicinterest4.1.The contract ong>ofong>employmentAll employees have obligations and rightsarising from their contract ong>ofong> employment.These may be found in various documents:●the statement ong>ofong> terms and conditions ong>ofong>employment every NHS employee mustreceive within two months ong>ofong> startingwork - which must include details ong>ofong> thesalary paid, holiday entitlement, and soon (8)●●other documents referred to within thestatement ong>ofong> terms and conditions orwhich are otherwise drawn to theattention ong>ofong> the employee - such asdisciplinary procedure, job descriptions,clinical protocols and standards, worksrules (on everything from parking toexpenses to health and safety)statutory terms which are assumed toapply to all contracts (eg health andsafety legislation, equal pay rights, anti-10

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookdiscrimination legislation, unfairdismissal and redundancy rights, the rightto whistleblow.)2.2. “Implied” terms ong>ofong> thecontractIn addition to the above rights, all contractsong>ofong> employment include “implied duties”.These exist whether or not they are actuallywritten down as part ong>ofong> the contract. Theyare crucial to an understanding ong>ofong> how,when and why unsafe instructions orcircumstances can be challenged.They include a ong>dutyong> to their employer to:●●●●work in accordance with lawful ordersco-operate with their employerserve the employer faithfully and honestlyexercise skill and ong>careong> in the performanceong>ofong> their work.In return employers have an obligation totheir employees to:●●pay agreed wages for duties performed orwhich the employee is ready to performtake reasonable ong>careong> for the safety ong>ofong> theemployee including as set out in currenthealth and safety legislation●●●●●●provide a safe working environment andtake reasonable steps to ensure theemployee’s safety (9)act in good faith towards the employeenot act in a way so as to undermine thetrust and confidence ong>ofong> the employmentrelationshipbehave reasonably towards theiremployeesnot to cause psychiatric harm to anemployee by reason ong>ofong> the volume orcharacter ong>ofong> the work imposed on theemployee (10)not sexually harass an employee or racialdiscriminate against them. (11)These duties exist whether or not they arewritten down in the employees’ contract ong>ofong>employment, and exist over and above thestatutory and other rights arising from thewritten contract.4.3.The ong>dutyong> to follow lawfulinstructionsThe crucial obligation that this handbook isconcerned with is that requiring an employeeto work in accordance with the lawful4. THE CONTRACT OF EMPLOYMENT AND THE DUTY OF CARE11

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookcontractual instructions ong>ofong> the employer. Asthis handbook explains, this obligation maybe challenged in certain circumstances:● where an instruction is unlawful - forexample requiring drivers to drive roadvehicles they are not qualified to drive●intolerably unfair requirements onemployeeswhere there is insufficiently directinstruction - for example where there areconflicting instructions from differentmanagers● where an instruction is clearly unsafe -either in breach ong>ofong> a statutoryrequirement or obviously a serious healthand safety risk● where an instruction conflicts withstatutory rights and obligations - forexample insisting staff breach antidiscriminationlegislation or the WorkingTime Regulations 1998● where an instruction is outside theemployer’s contractual authority - forexample imposing obviously andand most importantly for this handbook● where an instruction conflicts withimplied contractual duties - especially theindividual’s duties ong>ofong> ong>careong> or with a Codeong>ofong> Prong>ofong>essional Conduct which sets outthe specific duties ong>ofong> ong>careong> for a particularprong>ofong>ession.The rest ong>ofong> this handbook primarilyconsiders what to do when staff findthemselves in such circumstances.12

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook5. The ong>dutyong> ong>ofong> ong>careong>, thepublic interest andCodes ong>ofong> Prong>ofong>essionalConduct5.1.The ong>dutyong> ong>ofong> ong>careong>All individuals owe a ong>dutyong> ong>ofong> ong>careong> to eachother. Health service employees must exercisethat ong>dutyong> ong>ofong> ong>careong>:●●●to patientsto colleaguesto themselvesThe courts have made it clear what standardong>ofong> ong>careong> can be expected ong>ofong> any individual. Itis the standard ong>ofong> a “reasonable man orwoman”. Failure to exercise the ong>dutyong> ong>ofong> ong>careong>to that standard can lead to a charge ong>ofong>negligent behaviour - defined as failure toSummaryThis chapter examines the “theong>dutyong> ong>ofong> ong>careong>”, the status ong>ofong> aCode ong>ofong> Prong>ofong>essional Conduct, the“public interest”, what constitutesnegligence, and whether ornot a Code ong>ofong> Prong>ofong>essionalConduct may be regarded as partong>ofong> the contract ong>ofong> employment.take that degree ong>ofong> ong>careong> which wasreasonable in all the circumstances ong>ofong> thecase or failure to act as a reasonable personwould act.For a some workers (such as a healthprong>ofong>essional), the courts have gone furtherand said that in determining whether a ong>dutyong>ong>ofong> ong>careong> was exercised, the standard ong>ofong> workshould be ong>ofong>:“the standard ong>ofong> the ordinary skilled personexercising and prong>ofong>essing to have thatspecialist skill. A man need not possess thehighest expert skill; it is well established lawthat it is sufficient if he exercises the135. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookordinary skill ong>ofong> the ordinary competent manexercising that particular art”. (12)In other words, a nurse, technician, scientist,doctor, paramedic or therapist does not haveto be the best there is, but must be at least atthe standard ong>ofong> the reasonably competentpractitioner.The ong>dutyong> ong>ofong> ong>careong> to a patient exists from themoment a patient is accepted for treatmentor a task or role is accepted and the patientbegins to receive services. This may be, forexample, on admission to a ward, acceptanceonto a caseload, when accessing NHS Director once registered at an A and E department.The ordinarily competent skilled person isexpected to:● keep their knowledge and skills up todate● provide a service ong>ofong> no less a quality thanthat to be expected based on the skills,responsibilities, and range ong>ofong> activitieswithin a particular trade or prong>ofong>ession● be in a position to know what must bedone to ensure that the service isprovided safely● keep accurate and contemporaneousrecords ong>ofong> their work - for clinicalprong>ofong>essions there will ong>ofong>ten be specificguidance on this issued by the stateregistration body● not delegate work, or accept delegatedwork, unless it is clear that the person towhom the work is delegated is competentto carry out the work concerned in a safeand appropriately skilled manner● protect confidential information exceptwhere the wider ong>dutyong> ong>ofong> ong>careong> or thepublic interest might justify disclosureAny working arrangements or proposals forservice delivery and resources must ensure allthese requirements can be met.Example: Inappropriate delegation to an OT assistantThe number ong>ofong> new wards opened has increased the workload ong>ofong> the Trust OccupationalTherapy Department. With sickness and previously booked annual leave adding to theproblem, a backlog ong>ofong> patients waiting for assessments has developed. A number ong>ofong> patientshave been waiting for over two weeks and one in particular, who needs a bath boardfollowing a hip replacement, has just phoned again to complain about the delay and isthreatening a formal complaint.14

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookAll the registered staff are already working with patients but there are two OccupationalTherapy Assistants working in the ong>ofong>fice. The manager reluctantly decides to send one ong>ofong>the OTA’s out to carry out the assessment. The OTA did this to the best ong>ofong> her ability but,when the bath board was fitted, and the patient tried to use it, it became apparent that theassessment has been inadequate. The contra indications ong>ofong> using a bath board following ahip replacement were not addressed by the OTA. Although the bath board was fittedcorrectly, the bath itself was too low and an attempt by the patient to use the bath boardcould result in the new hip dislocatingIssues. The delegation ong>ofong> tasks should only be done when those to whom the tasks aredelegated are competent to undertake them. Although the manager was under pressure tohelp the patient before a formal complaint was made, the assessment should only have beencarried out by a qualified member ong>ofong> staff, in accordance with the British Association ong>ofong>Occupational Therapists Code ong>ofong> Prong>ofong>essional Conduct.If it was impossible to get cover through a locum qualified OT, or to reallocate the work ong>ofong>a qualified OT, then the patient should have had the situation politely explained to him,including the right to complain if necessary.The OTA should not have agreed to undertake the assessment knowing she was notqualified to do it, and should have explained that to the manager and if necessary to herunion representative.5.2.Negligence and the ong>dutyong>ong>ofong> ong>careong>Three criteria must be met for negligence tobe proven and be actionable in the courts:●●●the ong>dutyong> ong>ofong> ong>careong> must actually be owedthat ong>dutyong> must have been breachedharm must have been suffered as a resultWhether negligence has occurred is a matterong>ofong> fact for the courts to decide. Where theong>dutyong> ong>ofong> ong>careong> has been breached because theacts or omissions ong>ofong> a health ong>careong> worker fellbelow those ong>ofong> the “ordinarily competent”health ong>careong> worker, it is important to bear inmind that it will be no defence to argue:●the shortcomings occurred because ong>ofong>one’s inexperience. If the task or5. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT15

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookcircumstances required a person ong>ofong> aparticular skill or standard, then ifsomeone was too inexperienced topractise safely, they should have madethat clear to their line manager or seniorprong>ofong>essional. In turn the supervisingprong>ofong>essional should have takenresponsibility for checking that tasks areonly delegated to, or undertaken by,competent persons. (13)Example: Pharmacy technician taking on an extended roleBarbara is a pharmacy technician. She returns to work after a year long absence following aserious road accident. Her role had included an extended role in the final checking ong>ofong>dispensed medicines. She had had the appropriate qualifications and experience prior totaking on the role and had started her new role two months before being ong>ofong>f. It had beenagreed that on her return she would have a refresher period followed by an assessment ong>ofong>her continuing competency.Due to staff shortages and sickness absence, the refresher period was condensed to oneweek and she was asked to recommence the full range ong>ofong> duties for a couple ong>ofong> weeks untilthe sickness absences improved. Although she had some reservations, she agreed. She soonfelt under pressure as she had to refresh herself as she went along and at the beginning ong>ofong>the second week, missed two dispensing errors, one ong>ofong> which was quite serious.Issues. It is the responsibility ong>ofong> the pharmacy technician, and ong>ofong> Barbara’s manager, toensure she is properly trained, up to date and competent to perform the tasks she is requiredto undertake. In this case, notwithstanding the staff shortages (perhaps especially because ong>ofong>them) she should not have been asked to resume the extended role without a properrefresher course and an assurance she was competent.Staff ong>ofong> any occupation have an obligation to ensure they are competent and that mustinclude ensuring they are up to date. Barbara should have sought advice and insisted onadditional refresher training and support, however pleased she was at being back at work,or however nervous she was at appearing not ready to resume the full range ong>ofong> duties. (14)16

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook● the shortcomings occurred because onewas acting under instruction. Aninstruction requiring one to workunsafely either by act or omission is onethat should be questioned andchallenged. Pointing the finger at one’smanager or another prong>ofong>essional does notlet you ong>ofong>f the hook. It simply implicatesthat other person as well. Bear in mindthat in any case where harm may haveresulted, it is not unknown for the personissuing the alleged unsafe instruction todeny this happened.Example: Health visitor and vaccinationA Clinical Medical Officer (CMO) asks a newly trained health visitor, Carol, to assist in avaccination session because the experienced health visitor is ong>ofong>f ill and the clinic is about tostart. The health visitor has had no vaccination training, nor is she authorised to undertakevaccinations.Carol fails to ask if the child has already had this particular vaccination and after she hasdone it, discovers that the child has, indeed, already (four weeks ago) had the samevaccination. Fortunately, the child suffered no physical after effectsIssues. Where a particular skill is required it is essential that the person undertaking thattask or role has been trained and has kept herself up to date. The CMO should not haveasked the health visitor to assist, but, in any case, the health visitor should have refused.Even if she had had vaccination training in a previous role, Carol would have been requiredto have ensured that she was up to date with the Trust’s protocols and any recent clinicaldevelopments. Had the child suffered harm she could have been sued for negligence andreported to the Nursing and Midwifery Council. As it is she is likely to be disciplined● The shortcomings occurred because ong>ofong> the attention ong>ofong> an appropriate manager.inadequate resources. This is especially Pressure ong>ofong> work and excessivethe case where there is no evidence that workloads are not, in themselves, aany concerns about inadequate resources defence against negligence.were formally identified and drawn to175. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookExample: Healthong>careong> assistant making mistakes throughstaffing shortagesOn a ward there has been one staff nurse and one Health Care Assistant short on the dayshift for three weeks. The Trust claims to have tried to get agency cover but staff believethey have not tried very hard because they are over-budget for this quarter.For the last three days there has been a further Health Care Assistant missing due tosickness. The one remaining day shift HCA, Dulcie, tried her best but by the end ong>ofong> thefirst day was aware that even with help from the registered nurses, it was impossible tocarry out even the minimum ong>ofong> necessary duties to a reasonable standard. She raised herconcerns informally with the ward sister who assured her they were trying to get cover, butsaid that with support from the registered nurses, it should be possible to keep going for acouple more days.On the third day the Dulcie makes a mistake. She gives a drink to a patient who wasdesignated “Nil by Mouth” and due to be operated on later that day. Dulcie is warned shefaces a serious investigation. She is very upset.Issues. In this case, the HCA should have found a way to put her concerns in writing sothere was no doubt how serious the situation was. Dulcie’s steward could have assisted withdrafting a short letter.In turn the ward sister, despite the pressures on her, should have acknowledged herresponsibilities under the NMC Code ong>ofong> Prong>ofong>essional Conduct and have redoubled efforts toget immediate cover, have sat down with the staff nurses and HCA to look at what thepressures were, what the risks were, and have considered what immediate steps could betaken - for example the temporary transfer ong>ofong> staff from another ward, or even the closureong>ofong> beds. She should have immediately drawn her own manager’s attention to the concernsexpressed.The HCA’s UNISON representative should try to establish how long the situation has beendeveloping, what steps have been taken, when managers became aware ong>ofong> the situation and18

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookinsist on an audit ong>ofong> other wards, or even run a quick confidential survey to establish thescale ong>ofong> the problem.Dulcie should have found the courage to raise her concerns formally if nothing happenedwhen they were raised informally. However she alone cannot be blamed if others failed intheir ong>dutyong> ong>ofong> ong>careong>. Clinical Governance should mean the focus ong>ofong> any investigation is at leastas much on the staffing shortages and why they weren’t tackled, not on one mistake by theHCA.It is worth noting that in each ong>ofong> these threecases, there are clear responsibilities on otherstaff, especially those in managerial or moresenior prong>ofong>essional positions.Tasks should not, for example, be delegatedto staff too inexperienced to carry them out.Instructions to work unsafely will reflect onthose who gave them, not simply on thosewho carried them out. Managers or otherprong>ofong>essionals expecting or instructing staff tocarry out responsibilities where there areinadequate resources (ong>ofong> whatever kind) tocarry them out safely, are themselves inbreach ong>ofong> their ong>dutyong> ong>ofong> ong>careong>.If any manager or prong>ofong>essional who allowsor insists that such steps be taken isthemselves registered, then they may expectto be called to account by their regulatorybody as well as by their employer. Ifnegligence is alleged they may be called toaccount by the Courts as well.It will, for example, be no defence in turn forsuch staff or managers, to claim that they“did not know” staff had inadequateresources to work safely, if they mightreasonably have been expected to know thatthe resources available were inadequate andpotentially unsafe. This is especially so ifthey had been alerted to concerns on this bythe staff in question - even more so if theconcerns were identified in writing.Nor is it any defence to argue that “theteam” were negligent, not the individual. Inlaw there is no such concept as “teamnegligence”. (15)5.3.What are the obligationsong>ofong> the NHS employer toprovide services?It is important to be clear what theresponsibilities ong>ofong> the employing Trust are5. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT19

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookwhere there are inadequate staffing resourcesor equipment. The obligation ong>ofong> the NHS orany particular part ong>ofong> it is not to provide thehighest possible standards ong>ofong> ong>careong> for all whoneed it. It is threefold:● to provide a comprehensive andintegrated health ong>careong> service● to demonstrate that, within the availableresources, appropriate priorities arechosen and● to ensure that those providing ong>careong> areable to practise safely and carry out theirong>dutyong> ong>ofong> ong>careong> (and that ong>ofong> the employer) toeach patientA whole range ong>ofong> protocols, standards andclinical policies have been developed to assistthat process. Alongside them is a range ong>ofong>NHS human resources policies, some basedon statute and case law, which seek tocomplement these clinical policies and assistin making the most effective use ong>ofong> availableresources.As a result, just because an employee oremployer cannot do everything that theybelieve needs to be done, does not mean theyhave breached their ong>dutyong> ong>ofong> ong>careong>. There arenot limitless resources in the NHS orelsewhere. The obligation ong>ofong> an employeeand employer is to:● ensure that what is actually done is donesafely and appropriately● make clear what cannot be done, or atleast be done safely● ensure the patient is treated with theappropriate urgency (16)There is one other reason why managers,including the Chief Executive, would do wellto create an environment in which staff canpractise safely. It is not only the employeewho may be liable in negligence under suchcircumstances. The employing trust or otherNHS employer will be held vicariously liablefor any breach ong>ofong> the ong>dutyong> ong>ofong> ong>careong> owed.This means that when damages are soughtthrough a negligence claim it will be theNHS employer who has to pay damages notthe individual member ong>ofong> staff whose acts oromissions may have caused the injury ordamage. The employee may lose her/his job,reputation and registration, but it will be theemployer who will be sued for damages.Moreover the Courts (and Ministers) havetaken an increasingly serious views ong>ofong>failures ong>ofong> health and safety management.20

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookExample. Chief Executive lost job following health andsafety prosecutionOne Southern England NHS Trust was served with a Health and Safety Inspectorate Noticefollowing their failure to have a Health and Safety policy in place as required under theHealth and Safety at Work etc Act 1974. The public furore (and ministerial displeasure) wassuch that the Chief Executive lost his job.5.4.What are the obligationsong>ofong> the NHS manager inproviding services?NHS managers have four distinct duties:●●●●they have duties as employees in the sameway as other employees have, to followlawful and reasonable instructionsthey have a ong>dutyong> ong>ofong> ong>careong> towards thosethat they managethey have a ong>dutyong> ong>ofong> ong>careong> to patients andthe wider publicthey may have duties as registeredprong>ofong>essionals under the prong>ofong>ession’s Codeong>ofong> Prong>ofong>essional Conduct. You should notethat these latter duties continue to existas long as the individual remains on theregister, whether or not they arepractisingIn addition all NHS managers in England arecovered by a NHS Managers Code ong>ofong>Conduct, extracts from which are reprintedin Appendix 3 ong>ofong> this handbook. (17) ThisCode is intended to set out standards forsenior managers as part ong>ofong> their contract ong>ofong>employment and addresses some ong>ofong> thesethemes. It is incorporated into the contractsong>ofong> employment ong>ofong> senior managers. A similarCode has been issued for Wales. Trusts areexpected to ensure private sector managersong>ofong> health ong>careong> services also observe the Code.The introduction ong>ofong> clinical governancemeans that managers with responsibilitiesbeyond the immediate delivery ong>ofong> a215. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookparticular clinical service may have aong>careong>fully defined ong>dutyong> to ensure thatstandards and systems are in place to ensurehigh quality. Large numbers ong>ofong> managersmay also have clear responsibilities forensuring that protocols and prioritiesidentified by, for example, National ServiceFrameworks, are in place and adhered to.Faced with potential or actual problems, amanager is expected to:● identify why staff (or others) believe thesituation is potentially unsafe. It will becrucial to sit down together with staff inan environment where staff are able tovoice concerns.● in the light ong>ofong> priorities set by theemployer, the available resources andequipment, and protocols, determinewhat can be safely done. If the manageris not qualified in the occupation inquestion, s/he should take advice from anappropriately trained person who is. Thismay involve considering whether thingscould be done differently, but could alsoinvolve deciding certain tasks or roleswill not be done until they can be donesafely, or changing priorities for staff● ensure that whatever steps are taken donot put staff who need to assess needs, ina position where they cannot do so, orcannot keep up to date, or maintaincontemporaneous records.The manager will need to manage staff in amanner which does not compromise theprong>ofong>essional judgement ong>ofong> their staff orthemselves. If this is not possible then s/hemust inform his/her own manager in writingthat a potentially unsafe situation exists,explain why, and seek advice. S/he will thenneed to ensure that the issues s/he has raisedreceive an early and appropriate response,which should be confirmed in writing.5.5.The public interestAnother circumstance where the ong>dutyong> tong>ofong>ollow lawful instructions may conflict withan implied ong>dutyong> in the contract ong>ofong>employment is where managementinstructions conflict with the ong>dutyong> to act inthe public interest. Examples might includewhere a health service employee believesclinical practices are unsafe, where there is aserous risk ong>ofong> infection arising from unsafeequipment, or where fraud or waste isdiscovered.In such circumstances, a member ong>ofong> staff22

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookshould normally draw their management’sattention to their concerns, in writing. EveryNHS employer should have a“whistleblowing” procedure to facilitatedisclosure ong>ofong> sensitive information.The legal rights ong>ofong> such staff to whistlebloware now much clearer following theenactment ong>ofong> the Public Interest DisclosureAct 1998, which protects workers inspecified circumstances from suffering adetriment as a result ong>ofong> making disclosuresabout the acts or omissions ong>ofong> other workersin the public interest.Someone making such a disclosure must doso in good faith (even if later it turns out tobe untrue) and must believe that at least oneong>ofong> the following tests are met:● that a criminal ong>ofong>fence has been or islikely to be committed,● that someone is failing, or will fail, tocomply with legal obligations,● that a miscarriage ong>ofong> justice will occur orhas occurred,● that there is a health and safety risk orthere is a risk ong>ofong> damage to theenvironment, or● that information about these issues hasbeen, or is likely to be, deliberatelyconcealed.The Act protects all employees, contractors,trainees or agency staff. The legal protectionis that he/she can receive unlimitedcompensation. However, to gain theprotection ong>ofong> the Act it is important toensure that any whistleblowing meets thecriteria ong>ofong> being a “qualifying disclosure”and must be to a legal adviser, employer,Minister ong>ofong> the Crown, or a personprescribed by Order eg Health and SafetyExecutive. Only in more extremecircumstances are wider disclosurespermitted. (18).NHS employers have separately beeninstructed to set up “whistleblowing”procedures and ban gagging clauses. YourTrust should have one and you have a rightto ask for it.235. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookExample: Bristol - why failure to blow the whistle costbabies’ livesSurgeons in Bristol continued carrying out heart operations on babies using methods thatwere obviously dangerous. A very high proportion ong>ofong> babies died. Parents were not told therisks. Many health service staff knew there was a problem but only one - an anaesthetist -tried to formally raise concerns. He paid the price by being driven out ong>ofong> his prong>ofong>ession inthe UK and ended up working in Australia. No one else formally complained. It is verylikely that the failure ong>ofong> doctors, nurses and other staff including the most senior managers,to raise concerns - whether from fear or otherwise - led to unsafe practices continuing muchlonger than they should.Issues. The public outrage at the Bristol baby deaths was such that an independent inquiryled by Prong>ofong>essor Kennedy (19) resulted in a scathing report and a serious attempt at rootand branch reform ong>ofong> some aspects ong>ofong> the medical prong>ofong>ession. Yet the failings ong>ofong> other healthservice staff was as serious. Why did no nurse blow the whistle? Why did senior managersdo nothing?Since Bristol, every NHS employer is supposed to have a rigorous Clinical Governanceframework in existence allied to a Freedom ong>ofong> Speech procedure.Yet on a less dramatic scale, it remains very difficult to challenge poor practice, especiallywhen carried out by a more senior health prong>ofong>essional or condoned by a senior manager. Itcan take great courage to break ranks and suggest that a respectable doctor, nurse, therapist,scientist or other colleague, is responsible for poor or unsafe practice. The personal pricecan be very high.Yet finding that courage is essential. Silence makes one an accomplice. Whatever the reasonsfor the poor or unsafe practice, Codes ong>ofong> Prong>ofong>essional Conduct, the ong>dutyong> ong>ofong> ong>careong> and thewider public interest (never mind a clear conscience) make it essential to find a way ong>ofong>making one’s concerns known.24

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookMost importantly:●●●your employer will have a local Freedom ong>ofong> Speech procedure with an independentelement to ityou must ong>careong>fully and prong>ofong>essionally document your concernsyou should talk through your concerns with your steward and, normally, with aRegional ong>ofong>ficer - especially taking advice on how to take matters forward - before goingpublic with any accusations.5.6. Codes ong>ofong> Prong>ofong>essionalConductProng>ofong>essional Codes ong>ofong> Conduct exist to setstandards to be applied to those wishing tobecome and remain members ong>ofong> a prong>ofong>ession.In one sense they simply “codify” aspects ong>ofong>the ong>dutyong> ong>ofong> ong>careong> and standard ong>ofong> ong>careong> withina framework ong>ofong> values and principles forspecific occupations. In other respects theymay go beyond the ong>dutyong> ong>ofong> ong>careong> and serve awider purpose linked to the public interest.The Codes themselves are ong>ofong>ten elaborated inother statements, which seek to expand orclarify the basic principles.They have ong>ofong>ten set out specific guidance ondealing with circumstances where the ong>dutyong> ong>ofong>ong>careong> may be compromised. For example:“as a registered nurse or midwife, you arepersonally accountable for your practiceand…..you must act to identify and minimisethe risk to patients and clients”Nursing and Midwifery Council Code ong>ofong>Prong>ofong>essional ConductA breach ong>ofong> any prong>ofong>ession’s Code ong>ofong>Prong>ofong>essional Conduct carries the risk ong>ofong>suspension or removal from the prong>ofong>essionalregister. Where the prong>ofong>ession is a stateregisteredone, then removal from theRegister makes it unlawful for you topractise in that prong>ofong>ession, and unlawful forany employer to employ you in thatprong>ofong>essional role if you are removed from theRegister.255. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookState registration ong>ofong> healthong>careong> staffWhere the prong>ofong>ession is not yet state-registered then the damage to reputation and livelihoodmay not be so serious. However, the government has made it clear that it intends tointroduce some sort ong>ofong> regulatory framework for the large majority ong>ofong> NHS staff. Therevised Health Prong>ofong>essions Council will include substantially more prong>ofong>essions than beforeand UNISON has actively supported some ong>ofong> those groups in getting a regulatoryframework for their work.Occupations such as healthong>careong> scientists, including clinical physiologists, perfusionists andcritical ong>careong> technologists, as well as pharmacy technicians, clinical psychologists, ODPs andcounsellors will certainly gain some sort ong>ofong> state registration in the near future. Others willfollow, including healthong>careong> assistants. Recognition as a registered prong>ofong>ession assists inproviding protection to the public but also enables staff to argue more forcefully againstunsafe protocols or unsafe working environments, and is to be welcomed.5.7.The status ong>ofong> Codes ong>ofong>Prong>ofong>essional ConductSome Codes ong>ofong> Prong>ofong>essional Conductrecognise there may be contractualimplications arising from the Code. Thus:“subject to any legal requirements to providea minimum service, if the basic standards ong>ofong>treatment and intervention cannot be met atany time, for whatever reason, OccupationalTherapists should decline to accept a referralor initiate a treatment”Code ong>ofong> Ethics and Prong>ofong>essional Treatmentfor Occupational Therapists Para 3.1.2.and“You are personally accountable for yourpractice. This means that you are answerablefor your actions and omissions regardless ong>ofong>advice or directions from anotherprong>ofong>essional”Code ong>ofong> Prong>ofong>essional Conduct Para 1.3Nursing and Midwifery CouncilBoth those requirements, for example, mightlead a registered prong>ofong>essional to refuse toaccept an instruction from a manager orsenior prong>ofong>essional.26

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookStudent trainees - their responsibilities - cardiacphysiologist and student nurseDue to staff shortages a trainee cardiac clinical physiologist Eleanor is asked to undertakestress/exercise tests without there being supervision by trained staff. The results ong>ofong> the testswere mis-read. Clinical physiologists are not currently state registered but will be in the nearfuture.Whilst on placement in an A and E department on a busy afternoon shift a student nurse,Fazia, is asked to look after a patient who had been admitted with a possible CerebralVascular accident. The RGN came from time to time to monitor treatment but the studentwas left for long periods unaccompanied to monitor his input and output and ensure hisintravenous fluid was running to regime.Issues. There is sometimes confusion over the accountability ong>ofong> student and trainee staff.Trainee and student staff cannot be prong>ofong>essionally accountable in the way that fully trainedand (where applicable) registered practitioners are.They are not expected to reach the standards ong>ofong> the “ordinarily competent” practitioner andshould never be asked to work except under the supervision ong>ofong> an appropriately qualifiedmember ong>ofong> staff. The student or trainee should always make it clear that they are not yetqualified, and in turn a patient has the right to refuse to be treated by you.As training increases students and trainees are not always be directly accompanied orsupervised. However students and trainees must not participate in any procedure for whichthey have not been fully prepared or adequately supervised. Though not qualified, studentsand trainees do have a ong>dutyong> ong>ofong> ong>careong> albeit the standard is less than that ong>ofong> a qualifiedpractitioner.Should a student or trainee be asked to undertake tasks they believe they are not qualifiedto do, they must make that clear, initially to their supervisor, and if necessary to their tutorong>ofong> a more senior manager. That is what both Eleanor and Fazia should have done.The supervisor (and training establishment) has a ong>dutyong> to ensure the student or trainee does275. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbooknot undertake tasks or responsibilities they are not qualified to. Inappropriate delegation(whether by act or omission) is a very serious matter expressly dealt with in all Codes ong>ofong>Prong>ofong>essional Conduct. Some registering bodies (eg NMC) issue specific advice to studentsand trainees.Many NHS contracts ong>ofong> employment make itclear that a breach ong>ofong> a Code ong>ofong> Prong>ofong>essionalConduct will be regarded as a disciplinarymatter (though only the relevant prong>ofong>essionalbody, not local management, can actuallydetermine whether a breach ong>ofong> the Code hastaken place). In such cases the Code may beregarded as being implicit within thecontract.Secondly, such case law as exists on thematter suggests that Courts may assume thatstatutory Codes are incorporated intocontracts ong>ofong> employment where stateregistration is a pre-condition ong>ofong>employment. In the landmark case ong>ofong> nurseGraham Pink, for example, the defendingbarrister John Hendy QC claimed thatStockport Health Authority’s decision tosettle the case, and at the maximum level ong>ofong>compensation, strongly suggested theyaccepted this was indeed the case.A Code ong>ofong> Prong>ofong>essional Conduct maycertainly be taken as a norm against whichemployee practices may be measured.Moreover, any orders or instructions by anemployer deviating from this norm need tobe justified.It is reasonable to assume that any Code ong>ofong>Prong>ofong>essional Conduct issued by a statutoryregulatory body is implicit within thecontract ong>ofong> employment in the same way thatthe ong>dutyong> ong>ofong> ong>careong> is. If this is the case, then amember ong>ofong> staff believing they are instructedto breach their own Code may reasonablyconclude that this is an unreasonableinstruction which should be questioned andchallenged.Finally, the Code is a document againstwhich any alleged prong>ofong>essional misconductwill be judged.For all these reasons, any contractualinstruction which requires a state registeredprong>ofong>essional to breach their Code ong>ofong>Prong>ofong>essional Conduct should be regarded asan unreasonable one and likely to beunlawful. In such circumstances, the28

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookpractitioner’s obligations to their Code takesprecedence over their obligation to obey aconflicting instruction.It is worth noting that a registeredprong>ofong>essional is still bound by their Code ong>ofong>Prong>ofong>essional Conduct even if they are notpractising. As a result they can still be heldto account by their statutory body formisconduct as long as they are on theprong>ofong>essional register for that prong>ofong>ession.In any case, anyone covered by a statutoryregistration will already know that theconsequence ong>ofong> losing one’s registration ispotentially more serious than losing one’semployment. Loss ong>ofong> registration preventsyou practising that occupation anywhere inthe UK, not just with your current employer.5.8. Implications ong>ofong> notbeing employed by the NHSMany people contribute to healthong>careong>provision but are not employed by the NHS.In particular, healthong>careong> staff employed bythe voluntary and private sector - includingin residential and nursing homes, by privatehospitals, by private contractors and by GPpractices - are in theory increasingly subjectto the same framework ong>ofong> health policies,clinical governance and inspection. Thereality is that the inspection and contractcompliance regime is patchy, andemployment practices are ong>ofong>ten much worse,without even trade union recognition.All ong>ofong> the framework set out in thishandbook, setting out the implicationsarising from the ong>dutyong> ong>ofong> ong>careong> and fromprong>ofong>essional accountability, apply whateverthe employment setting. Those implicationsalso apply to agency and temporary staffwhatever the employment setting.The significant difference is the absence ong>ofong> adetailed framework ong>ofong> clinical governanceand good employment policies, includingunion recognition, which means the non-NHS sector is ong>ofong>ten less well regulated, andthat in practice it can be much harder toraise concerns about patient or staff safety.It is worth noting, however, that GPs arebound by the GMC Code ong>ofong> Conduct andthat the Code ong>ofong> Conduct for NHSManagers applies to private contractors.Staff seeking to raise concerns in thosesettings are strongly advised to take advicebefore doing so.295. THE DUTY OF CARE, THE PUBLIC INTEREST AND CODES OF PROFESSIONAL CONDUCT

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookPositively influencing decisions about service prioritiesand staffingThere are several ways to influence decisions about service priorities and resources beforethey have a direct impact on patients and staff. Real Partnership Working should meantrade union involvement in the strategic planning process. It should mean trade unioninvolvement at the stage when the problem is being defined, not simply once an answer hasbeen decided. (20), (21)It is also worth using non-Executive members ong>ofong> Trust Boards to keep informed and tolobby. Where staff believe inappropriate priorities are being set or unrealistic expectationsbeing determined without increasing the staffing resources available, then the soonerconcerns are raised, the better.It is also well worth developing links between the trust trade unions and local patients’organisations and local councillors, who may have a direct interest in campaigns to ensuresafe practice.For more information, it is worth checking out the UNISON PositivelyPublic web site at http://www.unison.org.uk/positivelypublic, whichcontains information about the role ong>ofong> the private sector in healthong>careong>.30

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookSummaryThis chapter summarises someong>ofong> the statutory rights andduties which may be usefulwhen staff are seeking toensure working practices areconsistent with their variousduties ong>ofong> ong>careong>.6. Statutory rights andduties which mayconflict withmanagementinstructions6.1. Statutory rights and thecontract ong>ofong> employmentThe requirement in a contract ong>ofong>employment to follow managementinstructions is to follow “lawful”instructions. Employees cannot agree to giveup their statutory rights, nor should theyagree to undertake unlawful instructions.Some years ago, it was not uncommon foremployees to sign a statement giving up theirright to sue the employer in the case ong>ofong> anaccident at work. The Courts held that sucha requirement was unlawful.There are a number ong>ofong> specific statutoryrights and duties, which might conflict withmanagement instructions:a. S.7.a Health and Safety at Work Act(HASAWA) 1974 sets out the employee’song>dutyong>:“to take reasonable ong>careong> for the health andsafety ong>ofong> himself and ong>ofong> others who may beaffected by his acts or omissions at work”316. STATUTORY RIGHTS AND DUTIES WHICH MAY CONFLICT WITH INSTRUCTIONS

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookAn instruction that requires an employee todo otherwise is not reasonable and may beunlawful. It is important that a judgementabout the application ong>ofong> this is made in theparticular context ong>ofong> each situation.Employers have sought to argue that it isnecessary to balance the safety ong>ofong> patientsagainst those ong>ofong> staff. If this happens then itis crucial to take advice from your tradeunion ong>ofong>ficial. There continue to be toomany cases where employers have sought torefuse responsibility for harm caused tohealth service staff arising out ong>ofong> and in thecourse ong>ofong> their duties.Porter asked to move a heavy patientA 20 stone patient is being moved between wards and then into bed. On arrival in the newward, there is no mechanical assistance available to help move the patient into bed. Thestaff nurse says she’s reluctantly prepared to try to manoevre the patient with the porter, butthe porter, George, is concerned. A colleague recently hurt himself and a patient trying to dosomething similar. A discussion starts and the ward sister, who is under pressure to find twomore beds urgently, joins in. She implies that George is being obstructive and asks them to“get a move on please” as they are already short ong>ofong> staff on this ward.Issues. An epidemic ong>ofong> back injuries caused by unsafe lifting has affected NHS staff. It waswell recorded and has led to the NHS issuing specific guidance setting out good practice.George is right to be concerned. If it is not safe he should not be doing it and should not beput under pressure to do it.George should confirm that he was not properly equipped to do the task. The patientshould not be lifted without a hoist. The Trust should have a local procedure for lifting andhandling patients and these should be followed strictly. If the procedure says that 20 stonepatients can be lifted without hoists by the use ong>ofong> several personnel who have beenadequately trained in lifting and handling procedures then that is the procedure that shouldbe followed.Meanwhile the ward manager should be asked by the UNISON steward to remind all staffon that ward that there is a Trust policy, it should be followed, and ensure that all staff havebeen trained in following it. (22)32

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookb. S.2 HASAWA 1974 sets out general duties “c. the provision ong>ofong> such information,ong>ofong> employers to their employees to ensure, instruction, training and supervision as isso far as is reasonably practicable:necessary to ensure (their) health andsafety at work“a. the provision and maintenance ong>ofong>plant and systems ong>ofong> work that are safe “d. as regards any place ong>ofong> work underand without risks to healththe employer’s control, the maintenanceong>ofong> it in a condition that is safe and“b. arrangements for ensuring safety andwithout risks to health……absence ong>ofong> risks to health in connectionwith the use, handling, storage and“e. provision and maintenance ong>ofong> atransport ong>ofong> articles and substancesworking environment that is safe, withoutrisks to health…..”.Cutting the corners on hospital cleaning.Due to a flu outbreak, the number ong>ofong> cleaners in a hospital block with four wards is 50%down one evening. The supervisor ong>ofong> the contract cleaning company says that no help isavailable so they’ll just have to do their best, but she’ll try to get some cover the followingevening. The next night, the situation is the same. Two ong>ofong> the cleaners, Harriet and Hazelsay they are not prepared to work like this as it is impossible to keep the wards clean andthey have asked to meet the ward sister that evening with a list ong>ofong> work not done theprevious evening. The manager tells the supervisor to let them know they could bedisciplined if they do that.Issues. There is plenty ong>ofong> evidence that shoddy cleaning by contractors has led to outbreaksong>ofong> MRSA seriously (and sometimes fatally) affecting patients. If they feel able to do sodespite the threat ong>ofong> disciplinary action, the cleaners should make their concerns clearverbally and in writing, to the Supervisor and to their line manager. They should make itclear that they are concerned at the standards ong>ofong> cleanliness and their inability to maintainclean areas/wards because ong>ofong> the shortage ong>ofong> staff. They should state which areas they havebeen unable to clean properly and ask that the Ward Sister and Hospital Management beinformed.336. STATUTORY RIGHTS AND DUTIES WHICH MAY CONFLICT WITH INSTRUCTIONS

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookHarriet and Hazel should also state that they are raising the issue with their UNISONsteward as they believe the contract between the hospital trust and the cleaning company isnot being fulfilled and they are concerned for the safety ong>ofong> patients, staff and visitors. Theyshould ask for assurances from the supervisor and manager that the issue will be raised withthe ward sister and hospital management and that they will be advised ong>ofong> any decisions asto how to proceed in the event ong>ofong> continued staff shortages.Alternatively, if they believe the threat ong>ofong> disciplinary action and worse is a real one, theymay prefer to raise all ong>ofong> the issues above in writing with their UNISON representative andask the representative to pursue the matters on their behalf. It may be that the trust will beup in arms at the sloppy performance by the contractor. Either way, keeping a ong>careong>ful recordong>ofong> concerns and finding a way ong>ofong> raising them is essential, even if Harriet and Hazel have toremain anonymous.c. The Employment Rights Act 1996prevents workers being victimised wherethey take action to avert immediatedangers to health and safety.d. The Public Interest Disclosure Act 1998protects workers who “blow the whistle”on their employer’s malpractice inspecified circumstances where thisthreatens the public interest. The Actencourages the use ong>ofong> internal proceduresfirst, and is complemented by theprocedure every NHS Trust is expected tohave in place to ensure the Act isfollowed.e. The Occupier’s Liability Act 1975 sets outthe ong>dutyong> owed to employees and visitorsby the owner ong>ofong> premises. For NHS staffthis may not always be the local NHStrust but could include a GP practice, achurch hall, council premises and so on. Ifan NHS worker is required to work inpremises which may be unsafe, oruninsured, then there may be a conflictbetween that instruction and the ong>dutyong> ong>ofong>34

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookong>careong> to themselves, colleagues or those amended by the 1986 Act makesthey manage.discrimination on grounds ong>ofong> sex ormarital status illegal.f. The Management ong>ofong> Health and Safety atWork Regulations 1999 require employers j. The Disability Discrimination Act 1995to make a suitable and sufficientmakes it illegal for an employer withassessment ong>ofong> health and safety risks.more than 15 employees to treat adisabled person less favourably, becauseg. The Working Time Regulations 1998 andong>ofong> their disability, than they wouldthe linked agreements on itssomeone else. It also prohibitsimplementation within the NHS set limitsdiscrimination in services. The DDA ison the long hours culture, whichincreasingly referred to in cases wherepermeates the NHS. Bear in mind that theNHS staff have been ong>ofong>f sick from workNHS has agreed that the Regulationsand then seek to return to workapply to all NHS staff.There are a raft ong>ofong> policies within the NHSh. The Race Relations Act 1976 as amendedto apply both the Health and Safetyby the Race Relations (Amendment) Actobligations placed upon employers, and their2002 makes race discrimination illegalequal opportunity duties. The main ones canand places obligations on employers (andbe found on the DoH, Scottish Executive,staff and trade unions) both in relation toWelsh Assembly and Northern Irelandemployment rights and service provision.Executive web sites which can be accessedi. The Sex Discrimination Act 1975 asvia the UNISON web site.Example: Stress at work - the case ong>ofong> Richard PocockRichard Pocock was a mental health nurse in Colchester, Essex. He was subjected to avindictive, ruthless and macho style ong>ofong> management. He had worked happily for 17 years atSeveralls Hospital until November 1994 when it became apparent that the threatenedclosure ong>ofong> his ward was being brought forward. He was told his job would go and he must356. STATUTORY RIGHTS AND DUTIES WHICH MAY CONFLICT WITH INSTRUCTIONS

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookapply for other jobs. However, he was not qualified for the only other jobs available.He was placed in a managerial job for which he was unqualified and advised it would lookbad for him if he refused it. He was unable to cope with the job and then failed at interviewfor another managerial job. His behaviour had changed from being a solid and dependablecharacter to one displaying erratic and irrational behaviour. Richard’s employers failed tospot the signs ong>ofong> acute stress and thereby contributed to the tragic consequences thatfollowed. Richard then committed suicide leaving a widow and three children.A consultant psychiatrist examining the case for UNISON told the court that Richard’sdeath was an entirely foreseeable result ong>ofong> the activities ong>ofong> more senior management. NorthEast Essex Mental Health Trust were ordered to pay a £25,000 settlement to his widow forbeing in breach ong>ofong> their ong>dutyong> ong>ofong> ong>careong> to Richard.Issues. The impact ong>ofong> bullying and stress at work has become a major concern. Researchcommissioned by the NHS has demonstrated how widespread stress is (23) whilst NHSresearch has shown there to be an epidemic ong>ofong> bullying and harassment at work. (24)Case law is constantly changing but some principles are clear:●●employers do have a ong>dutyong> ong>ofong> ong>careong> towards employees which may well be breached bybullying and stress at workit is essential that the employer is informed in writing ong>ofong> any concerns held, otherwiseemployers may claim they didn’t know about them even if they should haveExcessive workloads, inappropriate delegation and a macho management environment areall causes ong>ofong> stress and bullying and it is essential to:●●●●keep a ong>careong>ful record ong>ofong> events - such as a diarytake advice from a UNISON steward sooner rather than laterput your concerns in writingsee if it is possible to challenge these pressures as a group rather than individually36

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookEmployees are protected by statute against victimisation for exercising their rights underEqual Opportunities legislation, rights arising from undertaking TU duties and activities, andrights arising from their role as Health and Safety representatives.376. STATUTORY RIGHTS AND DUTIES WHICH MAY CONFLICT WITH INSTRUCTIONS

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookSummaryThis Chapter summarises howclinical governance may assist inhighlighting and tacklingconcerns about the ong>dutyong> ong>ofong> ong>careong>.7. Clinical governanceand the ong>dutyong> ong>ofong> ong>careong>7.1.The moves to clinicalgovernanceIn the wake ong>ofong> public concerns about a seriesong>ofong> medical scandals, the governmentsignalled a shift towards:●●●●●improving the detection ong>ofong> adverse eventsavoiding risksopen investigation and learning ong>ofong> lessonsa “no-blame” culture wherever possiblebetter sharing ong>ofong> good practice and badexperiencesThis approach was called ClinicalGovernance and was intended to ensurestandards were improved across the NHS,with an end to the cover-ups and secrecy thatwere discrediting health staff and the NHSitself. It was defined as:“a framework through which NHSorganisations are accountable forcontinuously improving the quality ong>ofong> theirservices and safeguarding high standards ong>ofong>ong>careong> by creating an environment in whichexcellence in clinical ong>careong> will flourish”.(25)In each ong>ofong> the four UK countries, a systemwas developed which would ensure in eachtrust that there were:● clear lines ong>ofong> responsibility andaccountability for the quality ong>ofong> healthong>careong>● clear policies to manage risk andpublished procedures for each staff groupto identify and correct poor performance● a comprehensive set ong>ofong> qualityimprovement systemsIn turn these programmes would require:● local arrangements for monitoring andimproving the quality ong>ofong> health ong>careong>38

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook● the involvement ong>ofong> staff at all levels inconducting a baseline assessment ong>ofong>quality and in developing procedures toimprove it● national bodies which will inspect localtrusts, conduct national reviews ong>ofong>particular services, and produce anddisseminate clinical guidelinesThe Department ong>ofong> Health, for example, hasset out a series ong>ofong> “Essence ong>ofong> Care”benchmarking standards. They are down-toearthand explicit about what “good” ong>careong>involves. (26)Pre-conditions ong>ofong> effective clinicalgovernance include:● competent clinical supervision● appraisals carried out by trained staff● resources and protected time for trainingand continuing prong>ofong>essional development,including for part-time and shift workers● genuine team working in which concernsand suggestions can be raised openly byany staff memberssteadily enhanced through training andprong>ofong>essional development.Clinical governance is long overdue. TheHealth Act 1999, in making quality ong>ofong>service a core ong>dutyong> ong>ofong> NHS Trusts, will relypartly on clinical governance to ensure thereis a welcome corrective to the previous keyong>dutyong> ong>ofong> NHS trusts - to balance the financialbooks.7.2. The implications forchallenging or influencingmanagement decisionsClinical governance “builds on andstrengthens the existing systems ong>ofong>prong>ofong>essional self-regulation.” Equally, anopen, learning organisation requires a greaterability to highlight staff concerns aboutobstacles to safely delivered services such asexcessive workloads or stressed staff. Clinicalgovernance also requires regular appraisalsong>ofong> staff and a genuine programme ong>ofong>continuing prong>ofong>essional development for allstaff.7. CLINICAL GOVERNANCE AND THE DUTY OF CAREClinical governance, implemented properly,has the ong>dutyong> ong>ofong> ong>careong> and the public interest atits core. It will seek to have in place tools toensure this is the case and that staff skillsand staffing levels are appropriate and areClinical governance should therefore make itsignificantly easier to raise staff concernsboth prior to service developments and whenmanagement instruction, or the workingenvironment, undermine the ong>dutyong> ong>ofong> ong>careong>.39

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookImpact on disciplinary procedures (emphasis on improvingand learning from mistakes, not punishing)The ACAS Code ong>ofong> Practice on Disciplinary Practice and Procedures (26) encouragesemployers to use disciplinary procedures as a means to improve performance rather than ameans ong>ofong> punishing workers. Many NHS Trust procedures contain a similar principle,though this is not always the spirit in which disciplinary action is undertaken.When dealing with clinical issues (in their broadest sense) it is now essential that thisprinciple is clearly stated and acted upon. Many so-called clinical shortcomings arise fromexcessive workloads, inadequate staffing levels, inappropriately delegated tasks or roles, oran unacceptable bullying management culture. Trusts are supposed to be working towards ano-blame culture in which mistakes can be honestly acknowledged and learnt from, ratherthan seized upon as an opportunity to punish.It is therefore essential that concerns about safe practice are recorded and drawn to theattention ong>ofong> appropriate persons at the earliest possible opportunity. It is equally importantthat the principles ong>ofong> clinical governance are placed at the heart ong>ofong> any changes to servicesand systems.40

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook8.1. The new policiesThese policies derive from:●●●statutory employment rightsthe ong>dutyong> ong>ofong> ong>careong> employers owe to theiremployeesdecisions about what constitutes goodemployment practice to improverecruitment, retention, morale, flexibility,good work practices and so onSummaryThere is now in place acomprehensive range ong>ofong> policies,which should help staff andmanagers ensure the ong>dutyong> ong>ofong> ong>careong>and the public interest isprotected. These policies varyslightly between England,Scotland, Wales and NorthernIreland, but are essentially thesame.8. How NHS employersare supposed to treatstaff●●unnecessary confidentiality, and theimplementation ong>ofong> whistleblowingproceduresa social partnership approach toinvolving staff in planning and deliveringhealthong>careong> with a local policy on staffinvolvementpolicies to tackle harassment ong>ofong> staff byother staff, managers or members ong>ofong> thepublic8. HOW NHS EMPLOYERS ARE SUPPOSED TO TREAT STAFF● the need to implement clinicalgovernanceSeveral ong>ofong> these policies directly influence theability ong>ofong> staff to question and challengemanagement instructions:● a ban on gagging clauses, and●●adoption ong>ofong> a wide range ong>ofong> policiesseeking to balance work and familyresponsibilities - such as the ImprovingWorking Lives initiative in England orthe PIN set ong>ofong> policies in Scotlanda cut in the use ong>ofong> fixed term contracts41

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookwhich can make staff nervous aboutraising concernsThese are all policies health service staff willwelcome. They should make it easier forstaff to be pro-active and insist thatconcerns about safe working, the ong>dutyong> ong>ofong>ong>careong> and Codes ong>ofong> Prong>ofong>essional Conduct arebuilt into changes in working practices orservice provision. Some examples are givenin the next Chapter.Clinical governance itself is as much aboutemployment policies as clinical ong>careong>, and thenew HR policies and clinical governanceshould be understood in tandem.Equally, these policies should be usedalongside developments in the law andresearch on issues such as the handling ong>ofong>stress at work.Treating staff better improves patient ong>careong>Detailed research, commissioned by NHS employers, has demonstrated conclusively that:●●differences in human resources practices account for 33% ong>ofong> the variation betweendifferent hospitals in deaths within 30 days ong>ofong> emergency surgery and deaths afteradmission for hip fracturethe key factors were the extent ong>ofong> genuine appraisals and the extent ong>ofong> genuine teamworking based on co-operation, and clarity over autonomy and responsibilityThe research demonstrated that these differences in mortality rates were directly linked tostaff being clear about what they were required to do, and being valued by the organisation,both ong>ofong> which were especially linked to appraisalThe research also drew on research showing that almost 27% ong>ofong> the NHS workforcesuffered significant stress in which the key factor was workload and that clear objectives,genuine participation, and an emphasis on the quality ong>ofong> patient ong>careong> were good for themental health ong>ofong> staff. (28)42

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookSummaryNHS employers are under immense andconflicting pressures. The governmentwants rapid improvements in services,and has promised very large sums ong>ofong>money to achieve this. Yet the backlog inunder-funding, staff shortages andshoddy buildings and equipment is soenormous that it is proving very hard tobring about improvements at the speedministers, staff and patients want.9. The pressures on NHSemployers9. THE PRESSURES ON NHS EMPLOYERS9.1. Conflicting pressures.Unfortunately, many ong>ofong> the pressuresemployers face are in conflict with eachother:● Ministers say they want a radical shift toa primary ong>careong> led NHS with anemphasis on public health, but many ong>ofong>the targets set (such as cutting waitinglists and times) emphasise acutetreatment.● Ministers have raised public expectationssince 1997 with repeated statementsabout the increased funding for the NHSbut it is only recently that the funding iscoming through on a really substantialscale, and much ong>ofong> this is tied to specificprojects, not an overall increase ingeneral funding.●overdue Human Resources strategies forthe NHS at whose core is the belief thatonly if staff are treated better willrecruitment, retention and moraleimprove. Yet at the same time theworkloads and stresses on managers havenever been greater with astonishingturnover levels for senior managers.Ministers have stressed the importance ong>ofong>more flexible working and skill mix.However many employers are forced tograde mix rather than skill mix, to savecosts or through staff shortages, leadingto staff opposition. In other Trusts,whilst some “modernisation” has beendone in an exemplary manner improvingservices and staff morale, in others it hasbeen forced through at breakneck speedand with little evidence base.●Ministers have pushed through long●Ministers have stressed the importance ong>ofong>43

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookgood Human Resources policies but untilequipment to allow that to happen. Atrecently have done too little to monitorthe same time that Clinical Governanceand enforce good practice, leading toemphasises a “no-blame” culture,staff disillusionment. Moreover manyscapegoating and blaming continue apacesmaller trusts have weak or understaffedwith too many employers.●●Human Resources departments with toolittle power to insist on good HRpractice. This is compounded by the factthat the formative years for manymanagers were under a ConservativeGovernment when “tough management”was equated with good management andbullying was rife. For some, those habitsare hard to break.Ministers have gone out ong>ofong> their way tostress the importance ong>ofong> staff ownershipong>ofong> local policies and servicedevelopments. However, pressures fromministers to deliver a multitude ong>ofong> targetsin very tight deadlines undermine apartnership approach, which usuallytakes longer to develop a policy orservice, but is more effective.Ministers stress the importance ong>ofong>improved quality, openness andtransparency yet put immense pressureon local employers to increase thequantity ong>ofong> work undertaken withoutsufficiently funding the staff and●●●●The NHS has been subject to neverendingorganisational change andmergers (and more is promised) despitethe evidence that such changes destabiliseorganisations and take up an immenseamount ong>ofong> management time.Ministers constantly proclaim themanagement skills ong>ofong> the private sector ina way that reflects badly on the NHS -and yet pays NHS managers far less thanthey could get in the private sector.Ministers have pushed through PFIschemes in England as a panacea forpoor buildings and equipment yetprivately many senior managers admitthat they are saddled with huge debts andmust devote vast amounts ong>ofong>management time to such schemes withlittle central support.Some ong>ofong> the targets set (waiting times andwaiting lists, or ambulance responsetimes) can easily have perverse sideeffects, distorting priorities or leading to“fiddled figures”.44

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookIn combination, such pressures mean thatmany managers are themselves underpressure to deliver services with too littleresources, introduce changes too quickly, andong>ofong>ten have insufficient knowledge ong>ofong> goodHuman Resources practice or changemanagement skills.None ong>ofong> this means that poor managementshould not be challenged. What it does meanis that ong>ofong>ten managers themselves may beprivately sympathetic to the issues their staffraise and that it may well be possible towork with them to tackle the sort ong>ofong>conflicts this handbook raises.It certainly means that faced with anapproach that emphasises the ong>dutyong> ong>ofong> ong>careong>,the public interest and staff safety, it will bedifficult for managers to simply ignore suchissues.9. THE PRESSURES ON NHS EMPLOYERSExample: Managers have rights and responsibilities tooJohn is a Chief Biomedical Scientist in a microbiology laboratory. He is concerned that dueto staff shortages and excessive use ong>ofong> Locum staff, morale is falling and workloads aresteadily growing to the point where they are close to being unsafe. Staff at all levels areprivately complaining and he has great sympathy but he simply cannot keep any permanentstaff he recruits because ong>ofong> low pay and excessive workloads. The vacancy factor is 24%.The UNISON steward, Julia, representing biomedical scientists, MLA’s and other staff hasbeen raising these issues, referring to the IBMS Code ong>ofong> Prong>ofong>essional Conduct, which states“All prong>ofong>essionals, within their ong>dutyong> ong>ofong> ong>careong>, have a responsibility to bring to the attentionong>ofong> their manager any difficulties that may be encountered in the performance ong>ofong> theirprong>ofong>essional duties”Now the steward has given the Chief a written ultimatum - find extra staff or reduce theworkload or the coverage. Julia has provided a detailed breakdown ong>ofong> how the staffshortages are affecting safe practice.The Chief talks to his own manager. He says that whilst he sympathises, there is nothingthat can be done in the short term.45

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookIssues. John broadly accepts the points made in the letter from the steward. He is worriedthat unless something is done, there will be an overtime ban and more staff will go ong>ofong>f sick,making things even worse.Doing nothing is not an option. John should sit down with the staff to look at whetherthere are any ways in which the work could be covered more safely. He should then drawup an option list. Most obviously, the laboratory could temporarily withdraw its 24-hourcover except for minimal on-call. This would delay GP tests but not necessarily be lifethreatening. If that doesn’t have enough impact he could seek permission to increase thenumber ong>ofong> Locum staff, since staff willing to work overtime are all working at least oneshift extra a week already. If that doesn’t work he will need to sit down with his managerand, if necessary in writing, identify what the options are that would ensure safe working,and spell out the risks if that is not done.In the longer term, a serious recruitment and retention strategy should be put in place,linked to a strategic review ong>ofong> how laboratory services across the trust and beyond areprovided.If the Chief works like this, he and Julia, the steward, can be a powerful combination togain additional resources.Managers may find the Code ong>ofong> Conduct for NHS managers (see Appendix 3) a usefulreference document.46

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookSummaryThere are effective and responsible ways inwhich individual members ong>ofong> staff or staffgroups can, and should, challenge unsafeclinical and employment practices. Thischapter explores some ong>ofong> them. Whereverpossible the concerns should be tackledinformally and jointly with management.Where this is not possible, this chapterexplains other options.10. How can instructionsto work unsafely, andunsafe practices bechallenged?10.1. Three main challengesThere are three main circumstances in whichNHS employees may find themselves needingto challenge management instructions toensure their ong>dutyong> ong>ofong> ong>careong> and the publicinterest are safeguarded:●●●where there is a need to respond to anunexpected event or emergencywhere a continuing hazard or poorpractice needs to be remedied and a longterm solution is neededwhere new services or new ways ong>ofong>delivering existing services are beingconsideredThere may be occasions when an individualhealth ong>careong> worker has concerns which arenot shared by all colleagues. If you areconvinced you have genuine concerns then itis essential to raise them even if this makesyou unpopular at the time. Taking the easycourse may avoid short term pressures but isnot appropriate or defensible if it harmspatients, colleagues or yourself. Simplybecause colleagues are unwilling or afraid toraise concerns does not mean you shouldn’t.Each individual health ong>careong> worker has aresponsibility to ensure legal duties areadhered to and registered staff must adhereto codes ong>ofong> prong>ofong>essional conduct.10. HOW CAN INSTRUCTIONS TO WORK UNSAFELY BE CHALLENGED47

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook10.2.So what options arethere?Where there is an emergency ong>ofong> serious andimminent danger to themselves or others,then an employee may rely on the statutoryprotection ong>ofong>fered to health and safetyactivities (29) to raise health and safetyconcerns or disobey an order by taking theirown, appropriate, action or by refusing towork at allThe general ong>dutyong> ong>ofong> ong>careong> and, where theyapply to the staff in question, Codes ong>ofong>Prong>ofong>essional Conduct, may be relied onwhere staff can reasonably argue that theduties imposed by Codes ong>ofong> Prong>ofong>essionalConduct are themselves contractual oroverride contractual duties.Both these steps may be underpinned by useong>ofong> either the employers own “whistleblowingprocedure” that all NHS employers aresupposed to have in place, or where that failsor is cumbersome, the use ong>ofong> the PublicInterest Disclosure Act which protectswhistleblowers in specific circumstances withthe threat ong>ofong> unlimited compensation if theyare victimised.Whichever course is appropriate, individualmembers ong>ofong> staff, and, where appropriate,the staff group collectively, must ensure theyact in a way which highlights the preciseproblems, demonstrates the seriousness ong>ofong>the situation, and gives the NHS employerno option but to respond quickly andappropriately or run the risk ong>ofong> successfulchallenge and possible publicembarrassment.Example: Operating Department Practitioners and out ong>ofong>hours arrangementsA new out ong>ofong> hours arrangement is proposed for anaesthetic support for a new obstetricservice. The proposal, as described to staff, requires the anaesthetic assistant for emergencytheatres to also provide cover for the obstetric service. In the event ong>ofong> an emergency in theobstetric unit, the ODP, Ken, would be expected to attend, even if this meant leaving ananaesthetist with an anaesthetised patient in the emergency theatre.48Issues. Changes in working arrangements - on-call, shifts, equipment, or changes ong>ofong> location- ong>ofong>ten have consequences which could have been avoided if staff had been properlyconsulted.

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook●●●●●●●Ken firstly needs to ensure he has written confirmation ong>ofong> what is proposed.He then needs to set out why he (and hopefully ODP colleagues) are concernedHe should seek advice both from UNISON and from his prong>ofong>essional body theAssociation ong>ofong> Operating Department Practitioners with whom UNISON already workscloselyThe advice from the AODP will draw Attention to Paragraphs 1 and 4 ong>ofong> their Code ong>ofong>Conduct which cover an ODP’s responsibility for protecting the rights and health ong>ofong>patients, and not allowing any act or omission on their part to place at risk the ong>careong>afforded to patientsIt is likely to further draw on any relevant prong>ofong>essional evidence. This would includeadvice published by the Association ong>ofong> Anaesthetists ong>ofong> Great Britain and Ireland whichstates “The safe administration ong>ofong> anaesthesia cannot be carried out single-handedly.Competent and exclusive assistance is required at all times…..Assistance for theanaesthetist must be exclusive for any particular operating or investigational settingwhere anaesthesia is being administered”.It might further draw on any research evidence that Ken, his colleagues or the AODP areaware ong>ofong>. In fact the 7th Report ong>ofong> the Confidential Enquiry into Stillbirths and Deathsin Infancy provides supporting evidenceThe ODP would then set out these concerns in writing, seeking confirmation that therewill not in fact be any foreseeable risk that might place patients at risk as a result ong>ofong>such a working arrangement. This is likely to mean changing the proposal10. HOW CAN INSTRUCTIONS TO WORK UNSAFELY BE CHALLENGED●By setting out the concerns in writing at an early stage and placing the onus onmanagement to explain why this is an evidence based approach which has undergone arisk assessment, Ken gains the moral high ground and can protect both patient interestsand his own.Thanks to the AODP for this example, based on an actual and successful case combiningtheir advice with the local work ong>ofong> UNISON.49

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook10.3.How this should bedone—individual action andcollective measuresAs explained throughout this handbook,each individual health ong>careong> worker has apersonal responsibility to ensure his/her ong>dutyong>ong>ofong> ong>careong> to patients, colleagues, him/herselfand the employer are observed, and that thepublic interest is protected.That means each individual has steps theycan and must take as well, as any collectivemeasures that may be considered. Nervousmembers ong>ofong> staff should be encouraged tosupport any stand the union is taking byreminding them that the ong>dutyong> ong>ofong> ong>careong> and thepublic interest are not issues they can opt outong>ofong>. As one Code ong>ofong> Prong>ofong>essional Conductputs it (but it applies to all):“Where you cannot remedy circumstances inthe environment ong>ofong> ong>careong>, you must reportthem to a senior person with sufficientauthority to manage them….This must besupported by a written record”. (30)Note that:●●this is not an option, you “must” reportconcernsthe report must be in writingWhether or not their colleagues areconcerned, if an individual health workerbelieves safe practise is at risk then they musthighlight their concerns and at the leastensure appropriate management is aware ong>ofong>them.Much better, ong>ofong> course, would be if yourconcerns are shared by other colleagues. Inthat case a collective response will be moreappropriate and effective. In suchcircumstances, however, it is preferable thateach individual member ong>ofong> staff endorses anystatement ong>ofong> concern that is drawn up.Moreover, staff whose prong>ofong>ession is regulatedshould note that a collective representationdoes not remove the need to personallyidentify concerns they may have as well.On the other hand, it is crucial that anindividual member ong>ofong> staff takes advice -from her colleagues, her steward, from herfull time ong>ofong>ficial, or her prong>ofong>essional body. Itis important to be clear:● precisely what the concerns are● whether they really are something thathas to be formally recorded● what the individual member ong>ofong> staff isseekingIt important to distinguish between mattersthat should be raised informally with local50

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookmanagers and those matters that require a concerns raised and actively seeks a writtenmore formal approach. Where possible, record that they can draw to the attention ong>ofong>concerns should be raised informally as long their own manager. On the other hand, itas this does not give an opportunity for may be that the manager seeks to dissuadeunreasonable delays in tackling the concerns the member(s) ong>ofong> staff from pursuingraised.concerns. If the concerns are serious then,after taking advice, they should be placed inIt may well be that the manager shares thewriting and pursued more formally.Example: Excessive workloads - district nurses.Laura, a district nurse (DN) is one ong>ofong> three based at a health centre. For the last couple ong>ofong>years all three have complained they are understaffed. Until two years ago there were fourDN’s covering this health centre and the number ong>ofong> elderly patients on their caseload hasincreased by 15% since then. One ong>ofong> the DNs leaves and her replacement is a part-timerworking 3 days a week. The third DN then goes on long term sick leave with stress. Themanager manages to find a District Nurse Assistant but says there are no monies to coverthe qualified DN.Laura is the last remaining district nurse. She believes this is unsafe and seeks advice.Issues. Laura should:● set down in writing why she believes this is unsafe, in particular recording how theworkload and clinical demands have changed, what the risks are from the currentstaffing, and preferably identifying work she believes should be suspended in order tocarry out priorities safely and/or identifying what additional staffing is needed topractice safely10. HOW CAN INSTRUCTIONS TO WORK UNSAFELY BE CHALLENGED●if possible discuss her views with her two colleagues, but irrespective ong>ofong> whether they areprepared to support her, should put her concerns in writing, quoting her NMC Code ong>ofong>Conduct and send them to her manager. If her manager is not a qualified community51

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbooknurse, she should copy her concerns to her lead prong>ofong>essional. She should also send acopy to her union representative (she may want to send it as a “blind” copy at thisstage). Appendix One contains a pro forma letter to be adapted. It is availableelectronically on the UNISON web site at www.unison.org.uk/healthong>careong>/ong>dutyong>ong>ofong>ong>careong>●●seek a meeting with her manager to discuss her concerns, but should ensure that hermanager’s verbal response is confirmed in writing. If the manager won’t respond inwriting then the member should confirm the managers response in writingif no satisfactory response is received within a reasonable timescale, then she should seekadvice from her union representativeAt this stage the UNISON steward may well realise this is not an isolated issue and is in facta trust-wide or locality-wide issue for district nurses. In that case a meeting should be called,irrespective ong>ofong> which union they are in. Management may well provide a temporaryresponse and promise a better long term solution. Either way, it will be essential to confirmthat what Laura is required to do, can be done safely, and if necessary less essential workmust be suspended. An agreed written statement setting this out is essential.An individual member ong>ofong> staff, having takenadvice and sought support, should:● talk to colleagues, their union stewardand where appropriate their prong>ofong>essionalbody to clarify their concerns andidentify if other colleagues have similarconcerns● take a ong>careong>ful note ong>ofong> their own concernsin writing● put their concerns in writing tomanagement either individually or●●collectively with colleagues. Explain yourconcerns simply and clearly and wherepossible support them with evidence andreferences. The pro forma letter inAppendix 2 ong>ofong> this handbook is a guideto what should be saidinsist that any instruction to undertakeduties which are believed to be unsafe isput in writing by management, inresponse to your letterbear in mind that even where a managersays that they will “take responsibility”52

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookfor any harm that may result from youracts or omissions as a result ong>ofong> yourconcerns, this is meaningless. You (andthey) cannot delegate your ong>dutyong> ong>ofong> ong>careong>If these steps do not result in your concernsbeing addressed, then it is essential you takefurther advice from your union stewardand/or Regional Officer.At this stage it is not inevitable that a formalgrievance is lodged. The purpose ong>ofong> the lettermay be to highlight concerns and have adetailed discussion.Individual members ong>ofong> staff, or groups ong>ofong>staff, should not feel awkward orembarrassed about insisting on safe practice,or safe working conditions for themselves.The days are gone when it is acceptable for aTrust Board to counterpose the interests ong>ofong>staff to those ong>ofong> patients in suchcircumstances.Staff and their trade unions should aim to beseen as effective guardians ong>ofong> safe and highquality services. If we are able to halt oramend proposals to demoralise staff, or skillmix staff, inappropriately cut services orprovide potentially unsafe services, then wewill be better placed to secure better workingconditions, better working practices, moresatisfying jobs and greater security ong>ofong>employment. In turn, that will help staffrecruitment and retention.Failure to highlight concerns does no oneany favours - patients, staff or ultimately thetrust.10.4. What is theappropriate collectiveresponse to these conflicts?There are several steps to consider:Step One. Identify the problem and seek toclarify precisely what management are sayingabout it. Seek that clarification in writing.Step two. Set out the issues and the case forcolleagues and management. Be clear whatoutcomes staff are seekingStep Three. Test member support. This canbe done informally in a department, ward orhealth centre, or more formally through ameeting. Is it possible to take the issueforward as a collective issue ? Make sureeveryone is clear about the link betweenindividual accountability and collectiveaction.Step four. What is the timescale? Is it anurgent problem or an ongoing one (or both)10. HOW CAN INSTRUCTIONS TO WORK UNSAFELY BE CHALLENGED53

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook- or is it a new service or a delivery change?If there is immediate risk to patients or staff,or management intend to implement changesimmediately, then it will be essential to warnong>ofong> a formal grievance to trigger the statusquo clause in the grievance procedure, oralert health and safety representatives.Step five. Is it possible to work withmanagement in partnership or will a moreformal approach, insisting on consultationrights and the grievance procedure benecessary? If the latter, then be sure the caseis clear when you make it a campaign issue.Step six. At all stages ensure all members areinvolved, that stewards are centrally involvedand that the Regional Officer’s advice andsupport is sought.Many ong>ofong> these issues can be resolvedinformally or in partnership withmanagement. If this approach can befollowed, take it. It is likely to be the mostproductive. Use the arrangements forWorking in Partnership which now existnationally to insist on union involvement. Ifthe trust won’t take note ong>ofong> reasonableconcerns then more formal means will haveto be used, using the grievance procedure,building a collective response and ifnecessary a public campaign.One thing is clear. The sorts ong>ofong> concernsabout safe practice that this handbook hasdiscussed must be addressed where theyexist. If some employers are so foolish as tonot want to do so, then staff must ensurethese concerns are tackled.How UNISON supports individual membersong>ofong> staff with concerns will be a localjudgement for stewards, branches andRegional Officers. Where matters can beresolved informally they should be. Where aformal response seems appropriate, it iscrucial that no one launches precipitateaction without taking advice. It is essentialthat the Regional Officer be alerted wellbefore any whistleblowing, in particular,takes place to advise and protect staffconsidering doing so.Example: Mental health services at riskStaff employed by the local NHS Trust become increasingly concerned that the level andrange ong>ofong> community mental health services are falling well short ong>ofong> what all prong>ofong>essionsconsider to be the bare minimum. This problem is the culmination ong>ofong> four years’ budget54

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookdeficits. There is enormous pressure on clinical psychologists, community psychiatric nurses,therapists, administrative and other staff, made much worse by a decision to freeze allvacancies until the end ong>ofong> the financial year.The Trust Trade Union staff side committee has raised the matter at the last meeting ong>ofong> theJoint Consultative Committee but were told by the Chief Executive that regretfully theBoard have decided the freeze must stay in place and might even extend beyond the end ong>ofong>the financial year. There is pressure from staff to take things further, especially after twostaff are threatened by patients who are frustrated at the long waits to see staff.Issues. The staff side should obtain the minutes ong>ofong> the Trust Board meeting and seek awritten explanation from the Trust as to the reason for the staff freeze and what the Boardthink are the implications for safe practice.The staff side unions should urgently test staff opinion. They should organise meetings ineach ong>ofong> the main workplaces, preceded by a newsletter explaining their concerns. Theyshould consider a quick members’ survey to discover the impact ong>ofong> the freeze on patient ong>careong>and staff safety. They should ask all staff to immediately start recording all instances wherepatient ong>careong> or staff safety is compromised and give guidance on how such instances shouldbe recorded. All such instances should be contrasted with the National Service Frameworks,policy documents, standards and local protocols.If the meetings support the stand taken by the Staff Side Committee then there is a mandateto raise the matter publicly. They have already met with the Chief Executive, but it wouldbe worth asking to address the full Board meeting. That would be an opportunity for a stafflobby and press publicity - and possibly to get the Board to reconsider its decision.10. HOW CAN INSTRUCTIONS TO WORK UNSAFELY BE CHALLENGEDThe Staff side should contact local patients’ organisations, other health prong>ofong>essionals,Councillors, MPs and the local media. Full time trade unions ong>ofong>ficials should be involved. Aprong>ofong>essional Briefing should be prepared explaining the concerns, but being ong>careong>ful not toidentify, even indirectly, any individual patients. The Briefing should set out clearly whatpractical steps staff are seeking (eg extra staff, different priorities).Any attempt to single out staff highlighting concerns should meet with a robust responsefrom the Staff side, involving full time ong>ofong>ficials if necessary.55

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook10.5. Using rights toinformation, consultation,training and facilitiesRepresentatives ong>ofong> recognised trade unionshave a number ong>ofong> legal rights and NHSpolicies to draw on in insisting they beproperly consulted on the issues highlightedin the handbook.These legal rights, which should be improvedupon within a local recognition and facilitiesagreement, include, for union representatives:●●●the right to disclosure ong>ofong> information forcollective bargaining purposes - whichwould certainly include staffing levels, forexamplethe right to be consulted, in good time,and with a view to reaching agreementon avoiding or reducing any redundancieswhich may be threatenedthe right to be consulted on any transferong>ofong> employment arising from a merger, demerger,reorganisation, sale ong>ofong> business orcontracting out ong>ofong> work● the right to elect health and safetyrepresentatives and numerous rights forthem to exercise their rights to inspect, siton a safety committee and be consultedon health and safety matters● the right to elect learning representativesto influence, for example, training● the right to paid time ong>ofong>f for trade unionduties - including on precisely the sort ong>ofong>issues raised in this handbook● the right to paid time ong>ofong>f for training as atrade union representative● the right to have certain facilities in theworkplace - noticeboards, filing cabinetand, increasingly in the NHS, the use ong>ofong> acomputer, email and telephone forreasonable purposes● the right to not be victimised or treatedless favourably because ong>ofong> their tradeunion roleMembers have a right to reasonable time ong>ofong>f(without pay unless agreed withmanagement) to attend trade union meetings56

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook10.6. NHS policiesIn addition in England, Scotland, Wales andNorthern Ireland there exist various HumanResources policies, which set out additionalrights for trade union representatives, ong>ofong>tenenhancing these legal rights.Across the UK there are PartnershipAgreements which seek to give staff andtrade unions greater involvement in servicedevelopment, so that staff are involved fromCollecting the evidencethe start ong>ofong> changes, not only whenproposals have reached an advanced stage.Local recognition and facilities agreementsfurther set out what these rights are in anyparticular employer.UNISON encourages local stewards to getinvolved at the earliest possible stage usingthese avenues so that the issues outlined inthe handbook can be raised as constructivelyand effectively as possible.It is essential that staff, individually and collectively, are able to demonstrate what theirconcerns are. To do this it is essential to keep records ong>ofong> the concerns - the impact onpatient ong>careong>, or on staff.Clinical records should support any claims. Such records must:10. HOW CAN INSTRUCTIONS TO WORK UNSAFELY BE CHALLENGED●●●be in writing, be legible, dated and signedbe amended by crossing out, not by tippexbe concise, relevant, accurate and factualOther evidence can include:●standards staff are expected to meet with details ong>ofong> how and why they cannot (egwaiting times),57

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook●●●●●protocols, policies, National Service Frameworks, or Health Improvement Programmesthat risk being breached (how, when, why and who by)equipment and facilities that are inadequate, unsafe, broken or not availablestaff shortages or inappropriate delegation setting out why this is the case and theconsequencesstaff surveysthe results ong>ofong> risk assessments58

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook11. Influencing HealthService“modernisation”Much ong>ofong> this handbook has explained theframework ong>ofong> contract ong>ofong> employment,statute, case law and prong>ofong>essionalaccountability. The purpose has been to givehealth service staff more confidence inchallenging unsafe and inappropriatepractice, which may harm patients or staff,including influencing the “modernisationong>ofong>services.We should be prepared to embrace changewhere it meets the criteria set out in thishandbook and where the pay, terms andconditions ong>ofong> our members are not adverselyaffected or improved as appropriate. Wewant improved services. We know that manyservices fall below the standards we want toprovide. If there is genuine openconsultation, and unions are involved fromSummaryThere is a real positive side tothe changes in the NHS.Unprecedented resources aregoing into the NHS and, intheory at least, there is a newculture ong>ofong> partnership withstaff. This should meanrecognised unions having amuch better chance to influencechanges in service delivery andpriorities locally.the start ong>ofong> changes being considered, thenwe should get genuinely involved andinfluence what changes develop.You may find the following checklist usefulin doing that:●●●Where significant changes are proposedto service delivery or service provision,has all relevant information beenprovided to staff and their tradeunion(s)?Have the detailed proposals andsupporting evidence been providedsufficiently early to enable staff to bemeaningfully consulted or has the crucialdecision already been taken?Does this include precisely what isproposed, why, when, who is affected11. INFLUENCING HEALTH SERVICE ‘MODERNISATION’59

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookand how and what the claimed impact onthe obligation to consult properly withpatient services will be?staff and their trade union(s)?●Has advice been sought from trade●Are local trade unions clear about theunion(s), prong>ofong>essional bodies, otheradvantages ong>ofong> partnership and the newTrusts and departments?ways ong>ofong> working this may involve -●Have staff emphasised there must first beclarity on the process - timescale, statusong>ofong> proposal, nature ong>ofong> consultation andincluding the willingness to embracechange as long as it meets the criteria setout in this handbook?staff involvement?●Have local stewards networked via●Are staff and management clear aboutUNISON with other trusts where similarproposals have been made or introduced?Ambulance staffs and response timesMike is an ambulance service control room manager. He has become increasingly unhappyat pressures to improve statistics for response times by crews. The Chief Executive, regardedas a bully, has made it clear that the current position where the trust is near the bottom ong>ofong>the “league table” for response times is unacceptable. He says he wil hold line managersresponsible if they don’t improve and has warned crews they need to “sharpen up their act”.Response times improve, but do so primarily because responses times start being loggedfrom the moment the crew are alerted not from when the call is first received. Some crewsare also recorded as having arrived when they are almost there, not when they actually do.Mike, along with other crews and some managers objects to this. but is worried about raisinghis concerns.Issue. This type ong>ofong> situation exists in several services, not just the ambulance service. At theleast Mike - and other colleagues - should record their concerns with their line manager. Ifthe concerns are widespread and seem well founded, then UNISON should consider raisingthe matter formally but in a way that does not highlight Mike as the lead complainant. Ifthe practices continue then this is just the sort ong>ofong> incident where it may be appropriate toinvolve the local MP, the CHI or its equivalent.60

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookIf there are immediate andurgent concerns■■■■Has the reason for those concerns beenset down in writing with supportingevidence by the staff affected?Have appropriate protocols, Codes ong>ofong>Prong>ofong>essional Practice, Trust policies andclinical evidence been referred to in thewritten statement ong>ofong> staff concerns?Does the statement ong>ofong> concerns from staffask management to set out in writingtheir response - and if the problem is dueto management action, to set out a clearexplanation ong>ofong> what has happened andwhy?If it is appropriate, has a risk assessmentbeen carried out covering the risks toThe following checklist may beuseful in taking the first steps toensure safe working where there areimmediate or ongoing staff concernsAPPENDIX 1A checklist forsafe services■■■■■patients as well as those to staff?Have those written concerns withsupporting evidence been given torelevant managers and prong>ofong>essionalleads?Are all staff who are in any way affected,aware ong>ofong> the issues through a unionnewsletter and briefings?If there has been a response from thetrust, is the process and timescale ong>ofong> anydiscussion clear and in writing?If the matter cannot be resolvedinformally, is management aware agrievance may be pursued?If there is no reply, or an unsatisfactoryresponse, has advice been taken onwhether the issue should be formallyAPPENDIX 1. A CHECKLIST FOR SAFE SERVICES61

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook■■pursued through a grievance - and if soare the members clear what outcome theyare seeking?Do the members feel adequatelysupported by local union representativesand where appropriate regional ong>ofong>ficials?Has anyone asked any non-members ifthey’d like to join the union?If the issue is eventually resolved are thedetails confirmed in writing?■If management have agreed to discuss theconcerns, is everyone clear on the processand timescale to be followed to tackle theconcerns?2. If there are longerstanding concerns■■■■Has evidence been collected todemonstrate why staff are concerned?Is the evidence supported by reference toappropriate protocols, Codes ong>ofong>Prong>ofong>essional Conduct, Trust policies,health and safety policies and clinicalevidence where relevant?Are the risks to patients highlighted aswell as those to staff?As well as individual statements ong>ofong>concern has an attempt been made todetermine the scale ong>ofong> the problem andwho else may be affected? Has there beena staff meeting, a newsletter or a survey?62

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookThese letters and others are available onthe UNISON web sitewww.unison.org.uk/healthong>careong>/ong>dutyong>ong>ofong>ong>careong>where they may be downloaded andamended. Other pro forma letters are alsoavailable there.APPENDIX 2Pro-forma letters raisingconcernsAPPENDIX 2. PRO-FORMA LETTERS RAISING CONCERNS63

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook1. Letter raising concerns about the impact ong>ofong> an ongoinglack ong>ofong> resourcesDateDear (Manager)Staffing levels in (service, department, health centre)This letter seeks to draw your attention to concerns relating to the impact ong>ofong> the current/proposed level ong>ofong> staffing in our (service, department, health centre).The concerns arise from the following facts, which have been ong>careong>fully recorded:1.2.(List the key issues in a factual manner, possibly referring to additional evidence in anappendix. Where possible give dates, statistics, references, including from your Code ong>ofong>Prong>ofong>essional Conduct, Trust policies, national policies or standards)As a result ong>ofong> this staffing situation, this letter is to formally record the following concernsabout the impact on the standard/range ong>ofong> services which can be provided, and upon our ownability to maintain reliable records and work safely. We also have concerns about thepotential (actual) impact ong>ofong> this situation upon the personal health ong>ofong> the staff affected. Theseconcerns are specifically:1.2.As a result I/we would appreciate an early meeting to consider how this situation can beaddressed in a manner that enables us to work safely in everyone’s interest. I wouldappreciate a written response to this letter, preferably in advance ong>ofong> that meeting.Finally can I draw your attention to the relevant sections ong>ofong> our Code ong>ofong> Prong>ofong>essionalConduct/Trust policy, which I believe is relevant?Yours sincerely64

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook2. Letter raising concerns about a proposal to change theservice provision or delivery - for an individual or adepartment or teamDateDear (manager)Changes to service delivery/ provision (give name ong>ofong> service etc)This letter seeks to draw your attention to concerns arising from changes to the service/howour service is provided. The concerns are both about how the changes are being consulted onor introduced, and about the actual proposals themselves:1.2.(List the key issues in a factual way, possibly referring to additional evidence in an appendix.If the concerns are that there is insufficient consultation, or negotiation, refer to the trust’sown policies.)As a result ong>ofong> these concerns I/we would appreciate receiving the following as soon aspossible:1. Written details ong>ofong> the precise proposals, their status and the timescale for introducing them2. Details ong>ofong> the evidence that these proposals are an improvement on the present service andong>ofong> the consideration given so far to issues arising from the trust’s ong>dutyong> ong>ofong> ong>careong> to patients andstaff. In particular could you clarify what consideration has been given to patient safety andsafe working practices in respect ong>ofong> (list any specific concerns)?3. Written details ong>ofong> the proposals for consultation and working in partnership withrecognised trade unions on the introduction ong>ofong> these proposalsAPPENDIX 2. PRO-FORMA LETTERS RAISING CONCERNS4. An assurance that no further steps will be taken to progress this proposal until there hasbeen appropriate consultation with staff and their union representatives on all aspects ong>ofong> theseproposals including the implications for safe practice.Your early reply, and an early meeting to discuss these issues, is requested.Yours sincerelyCc.65

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook3. Letter from a sympathetic manager drawing attention toconcerns raised with him/herDateDearConcerns regarding (name them)I write to draw your attention to concerns which have been raised within mydepartment/unit/locality/ward regarding (name the issue).The issues were first raised with me by (name) on (date). I them met with (names) on (date)to clarify precisely what the concerns were and to see how best they could be addressed.I attach my note ong>ofong> that meeting and the original letter from staff/UNISON. I also attach myinitial response, which seeks to address some ong>ofong> the concerns but also promises to respondfurther on the outstanding issues.I am concerned that the outstanding matters raise issues, which impinge on the ong>dutyong> ong>ofong> ong>careong>which the trust and I have to staff/patients. In particular I would draw your attention to:1.2.(Summarise issues ong>ofong> concern)Each ong>ofong> these raises issues relating both to departmental policies which we may be close tobreaching, and to the Code ong>ofong> Prong>ofong>essional Conduct for (name occupation), in particularClause (number) which states (include extract from the Code).The staff in the department/unit/ward/locality, whilst appreciative ong>ofong> the fact that I have metwith them and listened to their concerns, have made it plain that they intend to pursue thesematters until the risks they identify are removed. Moreover as a registered prong>ofong>essional (stateprong>ofong>ession), I believe I may personally be at risk ong>ofong> being in breach ong>ofong> my own Code ong>ofong>Prong>ofong>essional Conduct.I would appreciate an early meeting with you to discuss these matters in order that we maytackle these matters together now rather than await a potential grievance and a continuingrisk.Yours sincerelyEnc (attached documents)66

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookAll NHS managers in England are expected to observe The Code ong>ofong>Conduct for NHS Managers. (30) The Code also applies to allprivate sector managers managing staff or services for the NHSor managing units primarily providing services to the NHS. Forsenior managers (board members or the level immediatelybelow) the Code is part or their contract ong>ofong> employment. Asimilar Code exists for Wales. At the time ong>ofong> writing it is expectedthat similar arrangements will be made for Scotland, andNorthern Ireland.The following are extracts from the Code, which is available in fullat www.unison.org.uk/healthong>careong>/ong>dutyong>ong>ofong>ong>careong>APPENDIX 3Extracts from the Codeong>ofong> Conduct for NHSManagersCode ong>ofong> Conduct for NHS Managers1. “NHS manager(s)…will observe the following principles●●●●and●make the ong>careong> and safety ong>ofong> patients my first concern and act to protect them from riskrespect the public, patients, relatives, ong>careong>rs, NHS staff and partners in other agenciesbe honest and act with integrityaccept responsibility for my own work and the proper performance ong>ofong> the people Imanageuse the resources available to me in an effective, efficient and timely manner havingproper regard to the best interests ong>ofong> public and patientsAPPENDIX 3. EXTRACTS FROM THE CODE OF CONDUCT FOR NHS MANAGERS●be guided by the interests ong>ofong> patients while ensuring a safe working environment”67

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbookand●ensure that the public are properly informed and are able to influence services2. “I will also seek to ensure that NHS staff are●●●●●●●valued as colleaguesproperly informed about the management ong>ofong> the NHSgiven appropriate opportunities to take part in decision makinggiven all reasonable protection from harassment and bullyingprovided with a safe working environmenthelped to maintain and improve their knowledge and skills and achieve their potentialhelped to achieve a reasonable balance between their working and personal lives”3. I will also seek to ensure that:●open and learning organisations are created in which concerns about people breakingthe Code can be raised without fear”Implementing the Code“ NHS Managers have the right to be:●●●●●treated with respect and not be unlawfully discriminated against for any reasongiven clear achievable targetsjudged consistently and fairly through appraisalgiven reasonable assistance to maintain and improve their knowledge and skills andachieve their potential through learning and developmentreasonably protected from harassment and bullying and helped to achieve a reasonablebalance between their working and personal lives68

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookAPPENDIX 4ReferencesAPPENDIX 4. REFERENCES1. Recruitment and retention: A public service workforce for the 21st century. AuditCommission 20022. The effectiveness ong>ofong> health ong>careong> teams in the National Health Service. Aston University2002. Prong>ofong>essor M. West et al. See also: The impact ong>ofong> People Management on BusinessPerformance. The Institute ong>ofong> Personnel and Development.3. The Human Resources strategies for England, Scotland, Wales and Northern Ireland areregularly updated. www.unison.org/healthong>careong> has links to the current documents4. The Modernisation Agency in England has a constantly updated database ong>ofong>developments at www.modernnhs.nhs.uk5. For example in Pathology - the essential service P.4. DoH 2002.6. The National Racial Harassment Survey 2000, Lemos and Crane 2002. Commissionedby the DoH in 2000, but unpublished. It showed that 47% ong>ofong> black and ethnic minoritystaff in the NHS had experienced harassment at work. Improving the health ong>ofong> the NHSWorkforce, Nuffield Trust 1998, also commissioned by the NHS, reported an epidemicong>ofong> stress and poor mental health amongst NHS staff, particularly linked to heavyworkloads.7. Health and safety in acute hospitals in England National Audit Office 1996 wassharply critical ong>ofong> health and safety arrangement and led to a raft ong>ofong> new policies by theDoH.69

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook8. Section 1, Employment Rights Act 19969. Johnstone v Bloomsbury Health Authority 1991 1CR 26910. Walker v Northumberland County Council 1995 1All ER 73711. See (1) Reed and (2) Bull Information Systems Ltd v Stedman 1999 1RLR 299 onsexual harassment, and Weathersfield v Sargent 1999 IRLR 94 on instructions toracially discriminate12. Bolam v Friern Barnet Hospital Management Committee 1957, 2 All ER 11813. Bolam. op cit.14. See Generic Working in the NHS. UNISON. 1995.15. Wilsher v Essex Health Authority CA 1988 1 All ER 87116. Deacon v McVicar 7.1.1984 QBD.17. Code ong>ofong> Conduct for NHS Managers. Doll 200218. Speaking out without fear. UNISON, is a useful summary ong>ofong> the law and good practice.19. Learning from Bristol: The Report ong>ofong> the Public Inquiry into Children’s heart Surgery atthe Bristol Royal Infirmary. 1984-1995 DoH.20. Report ong>ofong> the NHS Taskforce on Staff Involvement DoH 1999. See also the ScottishExecutive Partnership web site and the Stewart Rouse report 200221. See, for example, the case ong>ofong> nursing sister Angela Knott who won £414,335 damagesat the High Court in October 2002 as a result ong>ofong> Newham NHS Trust failing to providesafe arrangements for lifting patients because ong>ofong> poor staffing levels and only one hoistbeing available between two wards. Angela Knott had to leave her job due to theresulting back injury.22. Improving the health ong>ofong> the NHS workforce Nuffield Trust. op cit.23. The Positively Diverse 2000 Survey Lemos and Crane. DoH 2000 showed similarresults24. A First Class Service: Quality in the new NHS , DoH 1998, similarly defined in QualityCare and Clinical Excellence (Welsh Office 1998)25. The Essence ong>ofong> Care - patient focussed benchmarking for health ong>careong> practitioners, DoH2001 available from DoH PO Box 777 London SE1 6XH26. Code ong>ofong> Practice on Disciplining and Grievance Procedures. Advisory Conciliation andArbitration Service.27. M. West et al. op cit.28. Reg 1. Management ong>ofong> Health and Safety at Work Regulations, 1992.29. Section 8.3 Nursing and Midwifery Code ong>ofong> Prong>ofong>essional Conduct 2002.30. Code ong>ofong> Conduct for NHS managers. op cit.70

The ong>dutyong> ong>ofong> ong>careong> — A UNISON HandbookAPPENDIX 5Further informationAPPENDIX 5. FURTHER INFORMATIONUNISON has numerous resources availableto support members wishing to act on theissues raised by this Handbook.If you are not yet a member and wish to findout about the benefits ong>ofong> membership pleasephone UNISONdirect on 0845 355 0845.Alternatively, you can download amembership form fromwww.unison.org.uk/join. Some ong>ofong> thebenefits to health service members can befound on our web site.Stewards and branch ong>ofong>ficers exist in everyNHS employer and can give support ordirect you to where you can get supportcontains the complete text ong>ofong> this handbookand links to related documents, as well asletters that can be downloaded and adaptedfor local use.UNISON publications cover many ong>ofong> theissues in the handbook in more detail. Manyong>ofong> them are available for download from theunion’s website.Of particular interest may be:● The Law and You - a UNISON Guide toKey Employment Rights● Stress at Work - a guide for safety reps● Harassment - a UNISON guideRegional Officials exist across the UK andare available to give specialist advice andsupport to stewards and where appropriate,to members.The UNISON web sitehttp://www.unison.org.uk is the mostcomprehensive ong>ofong> any trade union. It●●●●Violence at work - a guide to riskpreventionAn unhealthy attitude - sickness absencecontrol measuresEnding back pain from liftingHealth and safety reps pack71

The ong>dutyong> ong>ofong> ong>careong> — A UNISON Handbook●●●●The administration ong>ofong> medicinesGeneric working in the NHSRisk assessment - A UNISON guideA negotiator’s guide to the working timeregulationsweb site.Prong>ofong>essional organisations and statutorybodies all have their own web sites. They canalso be accessed via the UNISON web site.Employer’s web sites can very useful. Thereare direct links to them from the UNISON72

Price £5.00(Free to UNISON members)Published and printed by UNISON, 1 Mabledon Place, London WC1H 9AJ. www.unison.org.uk. CU/Jan03/13038/stock no.2135

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