In a recent analysis of cases relating to nurses, the Medical Defence Union (MDU) found that it was common for those nurses to have several different investigations launched into a single incident. This is known as ‘multiple jeopardy’ (MDU, 2022).
Risk of multiple jeopardy
Nurses' exposure to multiple jeopardy is founded on the multifaceted nature of the duty they owe to their patients and the nature of their accountability. Accountability underpins the professionalism, integrity and probity of nurses. It holds nurses answerable for their acts or omissions to a range of higher authorities and legally binds the nurse to their rules and regulations.
Four areas of law are drawn together to provide maximum protection to the public from the harmful acts or omissions of nurses. By making nurses accountable, the law regulates their practice and deters them from conduct that might pose a threat to the public as shown in Figure 1.
The risk of multiple jeopardy arises because these areas of accountability are not mutually exclusive. They can individually and collectively hold nurses to account. Each has its own standards and sanctions so to practise safely it is essential that nurses inform their practise with the requirements of the criminal, civil and contract law and ensure that their practice and behaviour always meet the standards of professionalism set out in the Nursing and Midwifery Council (NMC) (2018) Code.
Although each area of accountability has its own standards there is a degree of similarity and overlap between them, which again increased the risk of multiple jeopardy for a single incident.
A multifaceted duty of care
A failure to provide a timely examination or treatment to a patient that resulted in harm could initially result in a complaint to the employing NHS body, but then progress to civil action in negligence.
The law imposes a duty of care in specific cases known as duty situations. The courts have held that the nurse–patient relationship gives rise to such a duty (Kent v Griffiths & Others [2000]). That duty has been variously described by the courts as ‘a duty of care’, ‘a duty to take care’ or ‘a duty to be careful’ and it imposes a legal obligation to practise to the standards required by law (Bolitho v City & Hackney Health Authority [1998]). The duty is broad and touches on every aspect of the nurse–patient relationship.
Lord Diplock described the duty of care owed by nurses to their patients as a:
‘Single comprehensive duty covering all the ways in which you are called on to exercise skill and judgement in the improvement of the physical and mental condition of the patient.’
(Sidaway v Bethlem Royal Hospital [1985] (Lord Diplock at 894)
The duty covers all the direct and indirect care and contact a nurse has with a patient (Prendergast v Sam and Dee Ltd & others [1989]).
Discharging the duty of care
To discharge their duty of care nurses must be able to demonstrate that they have exercised skill and judgement in the improvement of the physical and mental condition of the patient (Sidaway v Bethlem Royal Hospital [1985]).
Traditionally the notion of a duty of care has been considered in relation to negligence where, to discharge the duty, nurses are expected to act in accordance with a practice accepted as proper by a responsible body of opinion skilled in that particular art (Bolam v Friern HMC [1957]).
However, the introduction of the Human Rights Act 1998 has placed a positive obligation on government to ensure that there are laws, policies and procedures in place that prevent a person, including nurses, from violating the human rights of another particularly where that person is vulnerable. This has resulted in the imposition of a range of obligations on nurses that now underpin their duty of care to patients.
It is no longer enough to act in accordance with a practice accepted by a responsible body of professional opinion. Nurses discharging their duty of care must ensure that their skill and judgement is informed by obligations set out in statute law, case law and professional codes (see Figure 2).
A single comprehensive duty
A complaint by relatives to a local health board about the nursing care and diabetes management of a relative with diabetes resulted in a multiple jeopardy investigation by the health board, police and professional regulator.
Initial investigations by the health board revealed inconsistencies between the records of blood sugar readings every 2 hours and the audit of the use of the blood sugar reading device. The health board referred the matter to the police who later charged three nurses with wilful neglect of a patient who lacked capacity under section 44 of the Mental Capacity Act 2005. All three pleaded guilty, two were jailed and the other received a community order. All three were dismissed from their post and later removed from the register by the NMC (Wright 2016). The failure to discharge their duty of care to the patient was also described by the judge as a failure of compassion and humanity (Keen, 2015).
That failure to carry out blood glucose tests then falsifying the record chart was investigated as:
- A criminal offence – wilful neglect or deliberately failing to provide treatment to a patient in your care under section 44 of the Mental Capacity Act 2005. Broader protection for patients against ill treatment and wilful neglect is now provided by section 20 of the Criminal justice and Courts Act 2015
- Complaint to the employer – for misconduct and breach of contract by failing to work with due care and diligence and acting dishonestly
- Unprofessional behaviour – breaching the standards of the Code (2018) by not prioritising the patient and acting dishonestly
- Negligence – a careless omission to provide care causing harm to the patient (Toombes v Mitchell [2021]). In this case there was no harm to the patient, so a negligence action did not proceed.
Conclusion
The nature of a nurse's accountability has seen an increase in multiple jeopardy situations, where investigations of a complaint, breach of duty of care, unprofessional behaviour and criminal offence are all undertaken in relation to a single incident. A nurse's duty of care is a single comprehensive duty and its scope requires that legal and professional obligations are discharged when exercising clinical judgement in relation to patients in their care.
Failing to meet those obligations could result in a multiple jeopardy outcome with sanctions from the courts, the nurse's employer and their professional regulator.
KEY POINTS
- It is common for nurses to have several different investigations launched into a single incident, which is known as multiple jeopardy
- Nurses' exposure to multiple jeopardy is founded on the multifaceted nature of the duty they owe to their patients and the nature of their accountability
- A nurse's duty of care is a single comprehensive duty
- Its scope requires that legal and professional obligations are discharged when exercising clinical judgement in relation to patients
- Failing to discharge that duty could result in sanctions from the courts, the nurse's employer and their professional regulator