Features

Rights and responsiblities

22 November 2021

Natalie Sammons looks at the legal and ethical role of the health visitor when dealing with non-engaging families.

Every day, health visitors are required to make autonomous decisions, often based upon very minimal information. This inevitably causes professional anxiety as the outcomes of these decisions can have significant consequences. In this article, overarching laws, professional codes and ethical concerns will be explored to enable a clearer recognition of the position of an HV when confronted with circumstances of non-attendance.

Background

The HV role originates in the Victorian era, when women and children were first visited in their homes to improve their health. This came about as the result of a new public health agenda, with a focus on home visiting to disseminate health advice to women and children. The contemporary HV role is closely linked to nursing through legislation (Cowley et al, 2007) and training, with nursing or midwifery being a prerequisite for HVs (NMC, 2004).

Although the HV service is not statutory, it continues to remain one in a unique position. This is because  it aims to operate largely through the provision of home visiting (Peckover and Appleton, 2019; Cowley et al, 2007), offering a universal service to all families with children under five.

Recognition of the fundamental role HVs have in the promotion of health, prevention of illness and support offered to families is well documented throughout literature (Peckover and Appleton, 2019; Appleton, 2011; NMC, 2004). Alongside offering a core service, HVs have also ‘extended their scope’ to include safeguarding and child protection (Appleton, 2011), identifying that the role is crucial in the ‘early identification of need’ and to promote the best outcomes for each individual child.

Treading the tightrope

HVs are ‘particularly skilled’ (Peckover and Appleton, 2019) when it comes to building relationships with families, having potentially difficult conversations and identifying signs of potential neglect or harm. However, it is important to acknowledge that the conflicting dynamics of the role can cause uncertainty, an idea Dobson (2017) labels ‘treading the tightrope of safeguarding’ when HVs are attempting to form trusting relationships with families while also using these contacts for surveillance for risk of harm.

Conflicting views exist regarding the core role of HVs, with Machin et al (2011) suggesting that there is an imbalance in role identity that creates confusion for the professional. Additionally, there is also insufficient policy detail about the health visiting role in relation to safeguarding children (Peckover and Appleton, 2019) although the literature repeatedly identifies HVs as being crucial in their protection (Department for Education, 2018).

In offering a universal service, HVs do not seek to gain consent for support, which indicates that HVs operate through implied consent. Implied consent is inferred from patients’ actions (O’Neill, 2004), such as the client letting the professional into their home or arriving for their allocated appointment. However, there is no recorded documentation of this consent. Implied consent has moreover been identified as a weak form of consent (Hendrick, 2010). For young children, consent is not always achievable (O’Neill, 2004) – it is therefore implied through the parent’s attendance with the child, which is deemed sufficient.

It is pertinent to highlight the ethical dilemma that HVs face as a result of implied consent. As the service is not mandatory, a conflict arises as to whether an HV should escalate concerns of non-attendance or whether families should be able to decline the service without fear of repercussions.

Purposeful non-engagement raises the theory of paternalism. Paternalism involves making a decision on someone else’s behalf when they are deemed unable to exercise autonomy (Tingle and Cribb, 2007). This is largely unchallenged when parents make decisions on behalf of their child (Hendrick, 2010), also known as parental paternalism. Not only are parents believed to know more about their own child, it is also presumed that parents will do their utmost to protect and safeguard their child. Although parents generally have a broad scope in how they raise their children, including the right to refuse treatment (as long as this is not deemed to expose the child to risk of harm), their decisions can be challenged if there are concerns that the child’s needs are not being sufficiently met (Hendrick, 2010).

Güvercin and Arda (2013) argue that parental paternalism resulting in refusal of treatment can violate the health rights of the child, and professionals should act to ensure that the best interests of the child are not compromised in these instances.

The decisions of parents can be challenged if there are concerns that the child’s needs are not being sufficiently met

Underpinning legislation

In health, both statute and case law apply alongside non-legal sources such as professional codes of conduct, which are known as ‘persuasive authority’. Although not legally binding, professional codes play a crucial role in the regulation of professional practice by setting the standard by which professionals are judged (Hendrick, 2010). Typically, when there are concerns, it is often local policies that first affect decision-making. Local procedures – a form of persuasive authority – would initially be reviewed, with relevant documents clearly outlining the processes to be followed when appointments are not attended. Non-attendance can be an indication of a family’s vulnerability; however, this should be balanced with risk assessments of the family’s unique situation. Protocols exist to support the offering of three visits; if non-attendance occurs for all three, then – depending on the risk assessment outcome – additional safeguarding advice should be sought. This process reflects the theory of autonomy (Beauchamp and Childress, 2013) by allowing the parents choice.

Wider concerns

However, when considering the wider legislation, article 3 of the United Nations Convention on the Rights of the Child (Unicef, 2015) states that the best interests of the child are paramount. This idea is supported within the welfare principle of the Children Act 1989, which stresses that the child should be central to any decision made in relation to them. In section 1 of the act, the paramountcy principle further indicates that the needs of the child should take priority over those of the parent. Non-attendance of appointments could therefore be deemed as a risk factor in itself as this is not in the best interests of the child, although more understanding as to the reason for non-attendance would be needed.

Persuasive authority as enacted by the NMC through its code (NMC, 2018) outlines health professionals’ responsibility in prioritising people by ‘respecting and upholding human rights’. The code is not specific as to which article of the Human Rights Act (1998) it is referring to; however, article 8 – the right to a private and family life without interference from public authorities – appears most salient. This article has been acknowledged as being broad in its interpretation; nevertheless, it does indicate that public authorities should protect the individual’s right to family relationships and choices on lifestyle and personal identity. Of course, there are restrictions to this; public authorities can intervene if they can demonstrate that this action is lawful and necessary for the safety and wellbeing of the child, including the protection of health.

It is argued from wider legislation (Children Act, 2004; 1989; Unicef, 2015), that the rights of the child should precede those of the parent. However, if a parent chooses not to engage with an HV service – which is a right supported by the idea of parental paternalism – then they are able to make that decision without retribution as the service is not compulsory. Parental autonomy can be a challenge for HVs (Scholtes and Schröder-Bäck, 2017), who will need to balance the right of the parent to bring their child up in a manner they deem appropriate while also managing this against any risk posed to the child. 

Harm can be determined as significant by comparing health and development with what may be expected of a similar child

For the HV, utilitarianism and the principle of justice (Beauchamp and Childress, 2013) also need to be considered. Health professionals want to balance the needs of the child with those of the parents to achieve the greatest good; however, unless there are additional concerns, the legislation does not fully support any single course of action. HVs can therefore be left uncertain as to which course of action to take (Machin et al, 2011).

SCRs and defining harm

Through evidence from serious case reviews (SCRs) regarding children, insight is gained into the increased risks facing infants (Peckover and Appleton, 2019), with common themes indicating that many cases involve children under the age of one (Appleton, 2011). Lessons learned from previous SCRs such as Victoria Climbié (House of Commons Health Committee, 2003) and Baby Peter (Local Safeguarding Children Board, Haringey, 2009) have been vital in improving the services provided to children. Lord Laming stressed the importance of the HV service, ‘particularly for very young children, who are unable to raise the alarm when suffering from abuse or neglect’ (Laming, 2009). One resulting change was to the Children Act 1989, which was updated in 2004 with a focus on strengthening the legislation to promote partnership working between agencies.

When considering the Children Acts of 1989 and 2004, the obligations held by a local authority, partner agencies and parents are outlined to ensure children are protected from harm and that their welfare remains paramount, with section 47 specifying that enquiries should be made if there is a belief that a child is or is likely to suffer harm. This means it is necessary to specify what ‘harm’ is, as this may enable professionals to feel confident in their decision-making.

Harm has been described as the ‘ill treatment or the impairment of the health or development of a child’ (Children Act, 1989), and harm can be determined as significant by comparing a child’s health and development with what may be reasonably expected of a similar child (NSPCC, 2020). However, this criteria is not absolute, as the determination of harm can take many forms. It is therefore deemed to be the role of agencies to work with families to access the child and utilise their professional judgement to make a decision (NSPCC, 2020).

Escalating concerns

The NMC code (2018) also stipulates that, if there are identified concerns, the HV has a responsibility to escalate them. The legislation appears to be united in the consensus that, if there is deemed to be a perceived risk to a child, then the professional has a responsibility to seek additional support or to raise those concerns.

However, it could reasonably be argued that the parents may have taken appropriate steps to negate concerns of harm, such as attending a GP or A&E, therefore minimising risk. The decision-making process for the HV in this case can cause conflict, with HVs once again needing to walk a ‘tightrope of safeguarding’ (Dobson, 2017). By raising the alarm when the concerns could be perceived as minimal and the parents acted appropriately, an HV risks alienating the clients and impeding any further decisions they make about attending appointments or engaging with the HV service. They could also inadvertently increase stress for a parent or create conflict between parents as a result, all of which could negatively affect the child.

Tingle and Cribb (2007) identify that competing moral principles should be balanced. The principle of non-maleficence indicates that an individual has a duty to refrain from doing harm, but this is not absolute – some harmful actions can be justified by having beneficent intentions. In referring a family to social care, an HV may be doing harm to the professional-client relationship; however, this is being done with the best intentions to ensure the safety of the child, although this does go against the ideas of paternalism and autonomy.


Essential safeguarding

  • Every day, HVs make autonomous decisions that are often based upon minimal information, which inevitably causes professional anxiety.
  • The health visiting service is in a unique position, offering a universal service to all families with children under five years of age.
  • As the service is not mandatory, non-attendance of appointments can cause conflict for HVs.
  • Wider legislation argues that the rights of the child should precede those of the parent. However, parents making decisions on behalf of their child are largely unchallenged.
  • Professional judgement formed through personal values, experience and understanding of HV practices can affect decisions made about non-attendance.
  • To ensure child safety and to work within legislation, HVs have a duty to escalate any concerns. However, it could be argued that there needs to be more clarity on the safeguarding role for HVs to feel confident in their decision-making.

HVs have an obligation to abide by the law and codes of professional conduct (Tingle and Cribb, 2007).If there is a risk factor, in which there is the potential for a child to have suffered harm, the HV has a responsibility to escalate their concerns.

Tough decisions

However, as an HV, this decision leaves me feeling uneasy. I recognise the importance of upholding the law and working safely within the codes of professional conduct while safeguarding children. That being said, I am not convinced that escalation is always the right course of action. Professional judgement is formed not only through personal values and life experiences but also through understanding of HV practices and priorities (Appleton and Cowley, 2008), a consideration that may not always be reflected in the law. Respect for autonomy should also be balanced with risk and the recognition that interventions in terms of advice and support, although ideal, are not always achievable (Scholtes and Schröder-Bäck, 2017).

Conclusion

To ensure the safety of children and to work within the legislation, HVs have a duty to escalate any concerns, acknowledging that legally this is the correct course of action. Professionally, this could create uncertainty, especially if personal values and experience are overlooked. However, the role of the HV is ever-changing, with an increasing focus on safeguarding; and it could be argued that, for HVs to feel confident in their decision-making, there needs to be more clarity on their role around safeguarding.

Furthermore, it must be considered that if the needs of the child are deemed to exceed those of the parent, then should the HV service be compulsory, allowing access to all children even if there are no additional risk factors? Ethically, this consideration may be controversial, breaching the principle of respect for autonomy. However, this change would support the principle of beneficence through enabling all children to access the support they are entitled to, and would allow HVs to feel confident in their decision-making when non-attendance occurs.

Natalie Sammons is practice educator with the Healthy Child Programme, Sussex Community NHS Foundation Trust.


References:

Appleton JV,  S Cowley. (2008) Health visiting assessment--unpacking critical attributes in health visitor needs assessment practice: a case study. International Journal Of Nursing Studies 45(2): 232-45.

Appleton JV. (2011) Safeguarding and protecting children; where is health visiting now?. Community Practitioner 84(11): 21-5.

Beauchamp TL, Childress JF. (2013) Principles Of Biomedical Ethics. Oxford University Press: Oxford. 

Children's Act. (1989) See: legislation.gov.uk/ukpga/1989/41/contents (accessed 30 September 2021).  

Cowley S, Caan W, Dowling S et al. (2007) What do health visitors do? A national survey of activities and service organisation. Public Health 121(11): 869-79.

Department for Education. (2018) Working together to safeguard children:.a guide to inter-agency working to safeguard and promote the welfare of children. See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/942454/Working_together_to_safeguard_children_inter_agency_guidance.pdf  (accessed 30 September 2021).

Dobson A. (2017) Newly qualified health visitor; starting out in safeguarding. Journal of Health Visiting 5(5): 219.

Equality and Human Rights Commission. (2018). Article 8, respect for your private and family life. See: equalityhumanrights.com/en/human-rights-act/article-8-respect-your-private-and-family-life (accessed 30 September 2021).

Güvercin CH, Arda B. (2013) Parents refusing treatment of the child: A discussion about child’s health right and parental paternalism. Clinical Ethics 8(2-3): 52-60.

Hendrick J. (2010) Law And Ethics In Children's Nursing. Wiley-Blackwell: New Jersey. 

House of Commons Health Committee. (2003) The Victoria Climbie Inquiry: report of an inquiry by Lord Laming. See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/273183/5730.pdf (accessed 30 September 2021).

Human Rights Act. (1998) See: legislation.gov.uk/ukpga/1998/42/contents (accessed 30 September 2021).

Laming H. (2009) The protection of children in England: a progress report.  Department for Children, Schools and Families. See: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/328117/The_Protection_of_Children_in_England.pdf (accessed 30 September 2021).

Local Safeguarding Children Board. (2009) Serious case review: baby Peter. See: www.basw.co.uk/system/files/resources/basw_111257-10_0.pdf (accessed 30 September 2021). 

Machin A, Machin T, Pearson P. (2011) Maintaining equilibrium in professional role identity; a grounded theory study of health visitors' perceptions of their changing professional practice context. Journal of Advanced Nursing 68(7): 1526-537.

NMC. (2004) Standards of proficiency for specialist community public health nurses. See: www.nmc.org.uk/globalassets/sitedocuments/standards/nmc-standards-of-proficiency-for-specialist-community-public-health-nurses.pdf  (accessed 30 September 2021).  

NMC. (2018) The code: professional standards of practice and behaviour for nurses, midwifes and nursing associates. See: www.nmc.org.uk/globalassets/sitedocuments/nmc-publications/nmc-code.pdf (accessed 30 September 2021). 

NSPCC. (2021) Safeguarding children and child protection. See: https://learning.nspcc.org.uk/safeguarding-child-protection (accessed 30 September 2021). 

O'Neill O. (2004)  Informed consent and public health. The Royal Society (359)1447: 1133-136.

Peckover S, Appleton JV. (2019) Health Visiting and safeguarding children: A perfect storm?. Journal of Health Visiting 7(5): 232-8.

Scholtes B, Schröder-Bäck P. (2019) Ethical considerations for the design and implementation of child injury prevention interventions: the example of delivering and installing safety equipment into the home. BMJ 25(3):217-21.

Tingle J, Cribb A. (2007) Nursing Law And Ethics. Wiley-Blackwell: New Jersey. 

Unicef. (2016) The United Nations Convention on the Rights of the Child. See:  www.unicef.org.uk/wp-content/uploads/2016/08/unicef-convention-rights-child-uncrc.pdf (accessed 30 September 2021). 

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