Author: Bridgit Dimond, MA, LLB, DASA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd.
Abstract: Dimond, B. (2007) Incontinence and the duty to provide care. Nursing Times; 103: 42, 44–47.
Bridgit Dimond considers the legal implications of failing to adequately assess the continence needs of vulnerable people. A typical situation is used to illustrate the legal issues that arise (Box 1).
It is an accepted principle of healthcare law that the secretary of state has a duty to provide a reasonably comprehensive healthcare service, but individuals who have sought to enforce the provision of a specific service have in general failed. The courts have held that it was not their function to direct parliament as to what funds to make available to the health service and how to allocate them. Similar principles apply in the provision of social services (R v Gloucester County Council and another ex parte Barry, 1997). However, where a service is being provided the law requires that a reasonable standard should be met.
Once care is being provided, there is a duty under the law of negligence for it to reach a reasonable standard. Failure to provide a reasonable standard is actionable if harm, for example personal injury, death or loss or damage of property, results.
In the case of incontinence, it is unlikely that failures to manage the situation could lead to personal injury or death, but such outcomes are reasonably foreseeable. For example, a failure to take reasonable care could lead to damage to the skin damage, which could become infected and this could be fatal.
How are standards defined?
In determining what is a reasonable standard of care, the courts have used a test known as the Bolam Test taken from a case where a patient alleged negligent practice related to electroconvulsive therapy (Bolam v Friern Barnet HMC, 1957). The judge stated that: ’When you get a situation that involves the use of some special skill or competence, then the test as to whether there has been negligence or not is… the standard of the ordinary skilled man exercising and professing to have that special skill. If a surgeon failed to measure up to that in any respect (“clinical judgement” or otherwise), he had been negligent and should be so adjudged.’
Applying this principle to continence management, a reasonable standard of care would be the standard of the ordinary professional nurse or care following the accepted approved practice. In determining this approved practice, reference would be made to any national guidance or standards. For example, any guidance issued by NICE (2006) in relation to continence should be known and followed by those caring for patients.
Similarly, the practitioner should be aware of any professional standards published by organisations such as the NMC (2004), the RCN and any specialist body concerned with continence such as the Association for Continence Advice. The Commission for Social Care Inspection has published a clinical trigger paper on the management of continence in older people (Council for Social Care Inspection, 2006).
Practitioners should also be aware of any research that has been carried out into the management of incontinence and the extent to which this research has been incorporated into accepted approved practice. They should also know if procedures, protocols and other forms of guidance have been developed on continence management by the PCT, the care home or other relevant organisations.
Where harm has occurred as a result of a failure to follow accepted approved practice, the victim can apply to a court for compensation. The amount of compensation would relate to the nature of the harm that has occurred. Account would be taken of pain and suffering.
An action for a breach of the duty of care could be accompanied by an action alleging that the hospital or home was in breach of the articles of the European Convention on Human Rights. This convention was incorporated into the laws of the UK by the Human Rights Act 1998. Article 3 states that: ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment.’
It is important to question whether failure to provide a reasonable standard of continence care is an inhuman or degrading. For a person to suffer the indignity of incontinence when there are known ways of managing the problem in a humane and sensitive manner is probably a breach of article 3, although to the author’s knowledge this issue has not arisen in a human rights case. The misuse of catheters to prevent incontinence and failure to remove them when appropriate could be seen as violations of article 3.
Article 8 states that:
‘Everyone has the right to respect for his private and family life, his home and his correspondence;
‘There shall be no interference by a public authority in the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
It could be argued that the loss of privacy and the lack of dignity that would accompany a failure to ensure continence was managed appropriately could be seen as a breach of article 8.
It cannot be argued that older people can expect to suffer incontinence and that there is nothing that can be done except to provide pads, since this discrimination could be a breach of article 14, which states: ‘The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.’
While age is not mentioned in the list of forms of discrimination in article 14, the list is not intended to be exhaustive but to give examples of kinds of discrimination. Thus an older person in a care home could argue that failure to provide incontinence management because of their age is discrimination under article 14 and link this with articles 3 or 8.
Hospital or care home
The duty to recognise the rights set out in the European Convention is binding on every public authority and also every organisation that carries out functions of a public nature. The House of Lords recently decided that a private nursing home was not carrying out functions of a public nature in the care of its residents and this has led to calls for amendments to the Human Rights Act to ensure that residents are protected under that legislation.
Application of the law to the case scenario
To expect Mrs Leonard to take legal action because of the failure of the care home to provide a proper care plan in relation to her mother’s incontinence is unreasonable. It is preferable for her to take less costly and drastic action initially. This could be in the form of a complaint to the manager of the home requesting information about Mrs Fishard’s care plan and how the home was managing her incontinence. It could be, for example, a problem of mobility and simply ensuring that Mrs Fishard was taken to the toilet at regular intervals.
The Commission for Social Care Inspection (2006) clinical trigger pathway starts with the question: ‘Is there a recent assessment of need including mobility, dexterity, communication, previous continence history or urinary tract infection?’
If Mrs Leonard’s complaint is ignored, she can refer the complaint to the registration and inspection body for care homes, the Commission for Social Care Inspection. If she is unhappy with its response, she could ultimately take her concerns to the ombudsman.
If Mrs Leonard can show there has been a shortfall in approved continence management practice, there are several ways of raising a complaint and endeavouring to ensure the implementation of a reasonable standard of care. Ultimately she can rely on arguments relating to the duty of care owed by the home and its staff to their residents and the human rights of Mrs Fishard. N
Box 1: Case Scenario
Mrs Fishard is in her 80s and has been in a nursing home for two years. Her daughter, Mrs Leonard, visited her regularly and was concerned that her mother frequently smelt of urine and appeared to be becoming increasingly incontinent. Her mother had always had high standards of cleanliness and hygiene and Mrs Leonard asked a nurse what action was being taken. The nurse assured her that it was a frequent problem with older people and Mrs Leonard need not concern herself about it because the home had a good stock of pads. Mrs Leonard felt that more should be done to manage her mother’s problem. What action can she take?
Bolam v Friern Barnet HMC (1957)
 2 All ER 118
Commission for Social Care Inspection (2006) Clinical Trigger Management of Continence.
NICE (2006) Urinary Incontinence: the Management of Urinary Incontinence in Women. London: NICE. www.nice.org.uk
R v Gloucester County Council and another ex parte Barry (1997)
HL  2 All ER 1