According to the NHS Security Management Service there were 54,758 reported physical assaults against NHS staff in England in 2008/2009.
There are likely to have been many more disruptive episodes that were dealt with by staff before they escalated into violence.
For many staff, dealing with abusive, foul-mouthed and antisocial patients and visitors is just part of the job; however, more help is at hand. Sections 119 and 120 of the Criminal Justice and Immigration Act 2008 came into force on 30 November 2009. The new provisions seek to create a safe environment, free from nuisance and disturbance, for working NHS staff and patients receiving treatment on NHS premises.
Section 119 creates a new criminal offence of causing a nuisance or disturbance on NHS premises and section 120 provides powers for police constables or authorised NHS staff to remove persons suspected of committing the offence.
The additional powers are intended to help make it easier for NHS trusts to deal with problem individuals without the need to involve the police, using reasonable force if necessary. The underlying principle, however, is one of prevention. It is hoped that hostile situations will be prevented before they arise and the potential to commit a criminal offence will deter individuals threatening to behave in an offending manner.
The Department of Health has published new guidance to help trusts understand their new powers. ‘Nuisance or disturbance’ is described as “any form of low-level anti-social behaviour on NHS premises” and includes the use of foul language, verbal abuse and intimidating gestures, creation of excessive noise and general obstruction of staff in carrying out their duties.
No offence is committed if the person has a reasonable excuse for causing a nuisance or disturbance. A medical condition may amount to a reasonable excuse but a mental health condition or learning disability does not automatically constitute a reasonable excuse; the condition must be responsible for the person’s behaviour. Similar caution applies where the person is under the influence of drugs or alcohol. The guidance makes clear that a reasonable excuse for refusal to leave the premises can be different to the one for behaviour.
Individuals seeking medical advice, treatment or care cannot commit the offence; however, persons who have already received treatment or are seeking treatment within eight hours of being refused treatment can commit the offence.
Where a trust intends to pursue a prosecution under section 119 it should refer the case to the local security management specialist for further investigation. A person found guilty of the offence is liable on summary conviction to a fine not exceeding £1,000.
Perhaps the most significant, and useful, power, is the power of removal under section 120. A person reasonably suspected of committing the offence may be forcibly removed from the premises by a police constable, authorising officer or authorised NHS staff member, using reasonable force if necessary.
This power should be exercised only if, following proper assessment and consultation with appropriate medical staff, the authorising officer considers it necessary and appropriate. Reasonable force should be used as a last resort, and must be proportionate to the situation.
Safeguards are built into the regime in that a person cannot be removed if they are believed to require medical advice, treatment or care, or if it is believed that removal would endanger their physical or mental health. The guidance recommends separate consideration is given to the homeless.
The powers are only available in respect of “NHS premises”. This will largely limit the power to secondary care facilities and will not include GP practices, dental surgeries, pharmacies or hospices unless they are located within hospital grounds.
Staff exercising the duties must be properly trained on the powers and procedures in sections 119 and 120 of the Act and authorised in writing by a person at board level. Records should be kept, not only of the authorisation but the use of the power should also be properly documented and monitored.
To date, few NHS trusts appear to have appointed ‘authorised officers’ and incorporated these powers into their procedures. They are a useful addition to the overall strategy for dealing with violence and aggression and a trust’s existing duties under the Health and Safety at Work Act 1974.
These powers may also prove a useful tool in removing patients who simply refuse to leave once fit for discharge, when there is no justification for doing so. There are many occasions where costly court action for possession has been the only option available to a trust.
Should the patient’s behaviour amount to a nuisance or should their unlawful presence itself constitute a disturbance, the new powers could offer a shortcut. All trusts are advised to make sure they are able to benefit from these new powers, before they need them.
Duncan Astill is an associate of Mills & Reeve LLP