6.10 The ethical duty of care
Three of the five issues have now been raised, if sketchily: the concern of ethics
with potential consequences; the higher standard and greater complexity of the
Code of Ethics when compared with the law; the way in which the personal ethics
of individual nurses needs to be at least a little higher and more complex than
either, and also needs to take in aspirations as well as strict duty and consider the
role of personal feelings, as an internal sanction and an encouragement to main-
tain standards ± all this needing to be tempered by a common-sense awareness of
what is reasonable and possible. Much of this applies to other areas besides the
avoidance of negligence, but this area affords a particularly clear example of the
differences between legal and ethical obligation.
However, we now come to something that applies particularly to negligence: the
extent to which there can be a specific ethical duty of care even when there is no
legal duty. There are three cases where this may arise. The first is the case where a
nurse happens to be on the scene of an accident. Legally, there is no obligation to
help the victims; nurses, midwives and health visitors are under no obligation to
stop and assist, unless they are already under a duty to help the person in question
because of their contract of employment. But if one holds that one ought to help
those in need if one can, then there is a moral obligation. Indeed, it might be
argued that the obligation on health professionals to stop and help is greater than
that on other people, because they have the relevant knowledge and skills; if there
is a general obligation on anyone able to help to do so, there must be a special
obligation, over and above this, on those with the relevant skills. It is true that there
is one particular problem here: although there is no legal obligation to offer care,
once it is offered it is subject to legal obligations, and the victim has a legal claim if
they suffer harm. I would suggest, however, that the existence of this paradox, that
anurse could not be sued for not offering care but could be sued for offering it
negligently, is not a sufficient ground for saying there is no moral obligation to
offer care. But it is to be hoped that the law of negligence will not develop, as it has
in some countries, in such a way that the legal risk of offering help becomes so
great that people become afraid to offer it.
Secondly, there are the moral and legal responsibilities of the head of a team, or
of the named nurse given overall responsibility for a patient's care. The named
nurse )or other practitioner) is legally responsible for the negligence of other
members of the team only if that negligence is the result of their own acts or
omissions ± if, for example, they fail to give clear instructions or to communicate
properly information about the patient or fail generally to make sure that all those
to whom care of the patient has been delegated were both adequately informed of
their responsibilities and competent to carry them out.
This is the legal position. But clause 2 of the Code of Professional Conduct
requires the nurse, midwife or health visitor to ensure that no action or omission on your part, orwithinyoursphereofresponsibility,isdetrimental to the interests, condition or safety of patients and clients' )author's emphasis). Paragraph 20 of the position statement,TheScopeofProfessionalPractice,amplifies this with special reference to theidentified' practitioners, responsible for `co-ordinating and
supervising the delivery of care'. This would seem to require more than the law
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