Duty of care

Overview

A 'duty of care' refers to the obligations placed on people to act towards others in a certain way, in accordance with certain standards. The term can have a different meaning depending on the legal context in which it is being used.

Generally, the law imposes a duty of care on a health care practitioner in situations where it is 'reasonably foreseeable' that the practitioner might cause harm to patients through their actions or omissions. This is the case regardless of whether that practitioner is a nurse, midwife, nursing associate, health care assistant or assistant practitioner. It exists when the practitioner has assumed some sort of responsibility for the patient’s care. This can be basic personal care or a complex procedure.

To discharge the legal duty of care, health care practitioners must act in accordance with the relevant standard of care. This is generally assessed as the standard to be expected of an 'ordinarily competent practitioner' performing that particular task or role. Failure to discharge the duty to this standard may be regarded as negligence.

When harm has come to a patient, the law examines who has a duty of care to that patient - and whether there was negligence - in order to attribute responsibility/liability for that harm.

A newly qualified nurse would be expected to deliver safe care in the same way as a more experienced nurse when performing the same task. The standards to be expected are not generally affected by any personal attributes, such as level of experience. 

The Nursing and Midwifery Council's (NMC) main aim is to protect the public. It sets standards for education, conduct, training and - ultimately - performance. Those standards may inform the legal standard mentioned above.

Nurses, midwives and nursing associates should always follow the NMC Code and other NMC guidance, including Enabling Professionalism. So, if a registrant fails to discharge their professional duty of care (that is, by breaching the Code and related standards) they may be referred to the NMC under the NMC’s Fitness to Practise procedures.

Although health care assistants (HCAs) and assistant practitioners (APs) are not regulated by the NMC or any other professional body, NMC guidance is useful when considering best practice. 

Martha's Rule has started to be implemented in the NHS in England from April 2024 to allow patients, families, carers and staff round the clock access to a rapid review from a separate care team if they are worried about a person's condition. Martha's Rule is supported by the NMC, which, in its view, aligns with the NMC Code to ensure the interests of service users and their families, and carers are at the heart of decision-making, which is key to safe, effective and kind care.

In recent years there has been increasing emphasis on honesty and transparency in health care - particularly following a number of public inquiries into patient care failures. For more information see our Duty of Candour guidance. 

At work you may experience inadequate staffing levels and skill mix, resource constraints and increased demands from management and clients. These pressures can lead to failures in the duty of care.

Some examples of situations where your employer’s expectations may conflict with your duty of care include excessive or unsafe workload, taking on tasks for which you are not trained or competent and being expected to work in an unsafe environment. Find out more about unsustainable pressures and staffing levels.

If you are a lone worker in the community, please also see our guidance on prioritising personal safety. 

Raising concerns

If you are concerned that a situation at work could lead to your duty of care being compromised, then you should raise these concerns with your employer, and record your concerns appropriately in line with local policy (for example, using the relevant Datix/incident report/untoward incident form). Read our raising concerns advice and contact us if you have concerns.

There are two aspects that need to be considered:

Legal duty

There is no legal duty to volunteer help in an emergency situation. The legal duty of care generally only arises when a practitioner has assumed some responsibility for the care of the patient concerned (see above). Accordingly, if a nurse is at a road traffic accident, they do not have a legal duty of care to offer aid to any person injured in the accident. Many people mistakenly assume that nurses have first aid training which would assist the injured person. This is not always the case.

Professional duty

However, registered nurses, midwives and nursing associates should be aware that the NMC Code places a professional duty on them to provide appropriate assistance, within their sphere of knowledge and competence.

Paragraph 15 of the Code states:

"Always offer help if an emergency arises in your practice setting or anywhere else 

To achieve this, you must: 

15.1 only act in an emergency within the limits of your knowledge and competence 

15.2 arrange, wherever possible, for emergency care to be accessed and provided promptly

15.3 take account of your own safety, the safety of others and the availability of other options for providing care" 

Wherever possible, a registrant should arrange for emergency care to be accessed and provided promptly. They should always take account of their own safety, the safety of others and the availability of other options for providing care. This professional duty may vary in practice, depending on the circumstances and the expertise of the nurse concerned, from simply providing some psychological comfort to the injured person, through to offering more hands-on care. 

This is illustrated in the following examples:

• if a nurse has an understanding of the impact of moving a person with spinal injuries, then they may be expected to volunteer that knowledge at the scene of the accident
• if a registered nurse with no midwifery training or knowledge came across a woman in labour their professional duty of care may be limited to reassuring the woman, making her comfortable and then calling an ambulance, acting within their competence.

As employer indemnity would not apply to an emergency situation outside the workplace, the RCN indemnity scheme does cover you for Good Samaritan acts subject to conditions and exclusions.

HCAs/APs: accountability and delegation 

Raising concerns guidance

Duty of candour

Nursing and Midwifery Council (NMC)

Enabling Professionalism (NMC)

For advice on referencing this web page, refer to your university's guidance. There are different styles of referencing so it's important to check which one is preferred by your course provider.