The NHS has a.legal duty to provide 'reasonable services', but this does not include a legal duty to continue the services if the patient is being unreasonable.
Dealing with violent patients and their relatives is a major problem for NHS managers and staff. The problems range from the violent drunk in accident and emergency.on a Friday night, a vulnerable patient in the community who abuses carers, through to a mental health patient who attacks staff because of delusions.
The key legal issue for the NHS is how to reconcile the legal duty to provide a safe place of work for staff with the emphasis on medical staff who provide care to patients, when the patients are making the place of work unsafe. There is a wealth of sensible and effective guidance from the NHS Counter Fraud and Security Management Service on the web and much progress has been made on this issue.in recent years.
Incidents of violence and harassment now have to be reported and management systems need to be designed to reduce conflicts, reduce tension and hopefully reduce the£69m the NHS fears it spends each year on this problem. Often the issue comes down to the simple question, 'when can you refuse to treat a patient who is violent?'
As the factual circumstances vary enormously, so the legal analysis of the clash of these two duties varies. The problem of the violent drunk is fairly straightforward. This individual may or may not have legal capacity (since they may have lost capacity along with all reason due to the drink) but they forfeit their right to treatment by breaching the rules of the trust.
The legal duty of the NHS.is to provide 'reasonable services'. This does not include a legal duty to continue the services if the patient is being unreasonable. So out they go, untreated if necessary, and they are the authors of their own misfortune. One junior doctor told me that freezing spray is very useful in such circumstances - usually applied to sensitive parts of the anatomy - to assist in the removal process. Not advisable, but it can be effective. As long as the violence and aggression is properly documented, if such a patient.tries to sue the trust later, a judge ought to have little problem in throwing out the case.
The continuing care patient who has services at home can also forfeit the right to those services by abusing his carers. A primary care trust.recently left a continuing care patient with a mobile phone when the service was withdrawn after repeated abuse of carers. The deal was simple: 'Abuse the carers and the service will be withdrawn. We have a place in a nursing home that you can have if, but only if, you sign an acceptable behaviour contract.'
The fact that the patient would have died if he had refused the nursing home place did not give him the legal right to insist on treatment at home. The message is that NHS care comes with strings attached - and those strings are directly attached to the human rights of those delivering the care. For those who are still with me, the story had a happy ending. After calling the PCTs' bluff, the patient.meekly went to the nursing home, had anger management training and now lives a much happier life.
Violence and mental health
Violence related to.mental health problems is, of course, far more complex, but can be a justifiable reason for moving patients into greater levels of security. Entirely removing services on account of violence is rarely justified for mental health patients but prescribing the circumstances in which they are provided is often the right answer.
The consequences of failing to tackle violence against staff can be serious for staff and those with a trust-wide responsibility for managing risks. The Health and Safety Executive has the NHS clearly in its sights on the issue of violence against.staff. Failing to give proper management focus to reduce, and where possible manage out, risks to staff can be a criminal offence under the Health and Safety at Work Act 1974.
Breaches can result in the service of improvement notices by the HSE or can lead to criminal prosecutions. Being up before the magistrates or the crown court for breaching duties to NHS staff is not a recipe for a long service award as an NHS manager. It damages staff morale and gives rise to severe reputation problems as the local press intervene in their usual 'helpful' way. At least one NHS chief executive has been moved on for failing to take this issue seriously.
So, all in all, checking that your organisation has the right level of investment in dealing with violence against staff and is delivering on its plans is probably worth part of any chief executive's time.