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How a nursing report can assist the court
27.14Many people who lack capacity will have care and support needs and although the use of an independent social worker is relatively common, it has recently become more common to instruct a registered nurse to assist the court.
27.15A registered nurse can assist the court in understanding several different matters of importance:
•P’s care needs. Often the care of P can appear simple, basic or routine, yet is often complex, unpredictable and intense. A nurse expert can give a perspective on current and future care needs, as well as how any medical condition from which P suffers impacts upon those needs, including by way of identifying issues regarding prescribing, administration, effectiveness and use of medication (including as required or ‘PRN’ medication). Although a nurse cannot give a prognosis an experienced nurse can also assist in advising on advanced care planning and possible end-of-life care needs. Whilst funding of care is not a matter that directly falls for consideration by the Court of Protection, a nurse expert will be able to identify whether the person should be assessed for NHS Continuing Healthcare (if not already in place) which could influence access to an increased level of services. Finally, the need for 24-hour registered nursing involvement at home if P is currently living in a nursing home is often given as a reason for not permitting P to go home. An expert nurse is able to advise as to whether such involvement is, in fact, required, or whether any particular procedure(s) can be undertaken by others with appropriate training or by the oversight of community nurse.
•P’s understanding of their needs. From visiting and talking to P (often more than once), a nurse expert will be able to establish from P their understanding of their own care needs. A nurse will be able to decipher non-technical terms and P’s own perspective as to their condition and assess the level and depth of their understanding of their needs and risks of alternative care provision. Whilst other professionals can also undertake this assessment, a nurse will be able to bring an expert perspective to bear upon whether P is likely to be able to gain further knowledge and understanding of their care needs;
•How P’s current or proposed setting affects their care needs. Care packages and approaches to supporting a person to live independently are constantly changing. The nurse will be able to give an opinion on the care delivered, its suitability and/or alternative approaches if required. The nurse will also be able to address how P’s wellbeing and quality of life is affected by the location of care, type of care and the quality of care. The location of care should be considered not simply by reference to the location, funding and the registration category of the care provider but also whether it meets the social, cultural and emotional needs of P. This not only refers to ethnicity and religion but also refers to social status and to P’s personal values. The nurse will also be able to advise the court as to concerns raised in regulatory inspection reports, whether any concerns have been rectified since publication and how any concerns may affect the care of P;
•The family’s perspective. Family relationships may be straightforward with all members of the family in agreement with their opinions of what is best for P. In other situations there may be complicated family dynamics with fractions, disagreement and diverse opinions. On other occasions the family members may be viewed by health or social care professionals as obstructive, subversive and sometimes responsible for abuse of P. Conversely the family may not trust any professionals and believe they have ulterior motives for their decisions. The reasons for any mistrust are varied and may be due to misunderstanding, poor communication, lack of understanding on either side and unwillingness to listen (to the professionals) or unwillingness on the part of the professional to appreciate the learned skills and knowledge of the family for caregiver. A nurse expert may well be able to assist in identifying the causes of (and potential solutions for) this mistrust for the benefit of the court. Moreover, and given that families and professionals will have to continue to work together after the court process is finished, a nurse expert may well be able to assist in bringing about the mutual understanding required to enable this continuing relationship;
•Potential safeguarding concerns. The nurse may be able to assist the court by making observations about safeguarding matters that are contentious, for example bruising or pressure ulcers. The nurse will not be able to investigate these concerns but may be able to comment on the enquiry that should have taken place at the time of the alleged incident and offer an opinion as to the future risks of any concerns.
27.16It is also important to note that a good nursing expert, by taking part in a professionals’ meeting with those involved in the case, can assist in the resolution of the case for two reasons:
•Firstly by reassuring the professionals that the expert witness is not ‘any better than them’, merely looking at the same situation from a different perspective.
•Secondly, because health and social care professionals often become anxious when anything ‘becomes legal’ and lawyers get involved, which only adds to any tension already present between parties. The nurse expert can assist in reducing these anxieties.
Types of registered nurse
27.17Nursing is a diverse profession and there are numerous specialities within it. The main qualifications relevant to the court of protection are Registered General Nurse (RGN), Registered Mental Nurse (RMN) and Registered Learning Disability Nurse (RLDN).
1In each case, ‘Registered’ means registered with the Nursing and Midwifery Council, which can be checked with the person’s name or PIN number. Within these branches of the profession the nurses will specialise according to patient’s needs, age or location of care. There will be nurses who have vast experience in one location of care and predominantly treated one care group but have no experience at all in other locations of care which may be considered by the court. A person’s diagnosis may appear to be the information most essential in identifying the most appropriate nurse but the diagnosis may be secondary to the care needs now presenting.
27.18The lawyer should consider whether the nurse has experience and expertise in the identified care needs of the person, rather than simply the diagnosis and in the various care settings being suggested. The nurse should have experience that is relevant and up-to-date. Nurses who work independently may be well placed to provide a court report if they have experience in a variety of settings or models of care delivery and they may be more accommodating with court directions and timescales; they may also still be in current practice across a wide range of services. Whilst there are no specific role titles which will indicate whether they have the requisite skill to give an expert report, it is likely that a nurse who has master’s degree, is an Independent Prescriber and has fulfilled the role of consultant nurse, nurse specialist or a community matron will have the requisite skills. They will also need to have undertaken training as an expert witness.
Instructing the nurse
27.19To obtain a satisfactory report, the lawyer needs to consider providing the following to the nurse expert:
•clear instructions setting out all the options required to be examined;
•details of the locations to be visited;
•contact details of the family and professionals involved;
•clear identification of the family groups and any conflicts;
•provide historical and current care records relevant to the issues to be explored (historical records being of importance where the report requires an opinion as to whether P can return to a specific location where a care package has previously failed; and
•details of any advocates or communication aids, or translators that may be required to support P in talking to the nurse.