article
Power dilemma for GPs
16 July 2009
Nuisance and disturbance behaviour is a particular problem in the
NHS. In 2006 a Department of Health consultation proposed
introducing new legislation to combat the problem. Two years later
the Criminal Justice and Immigration Act 2008 has introduced an
offence of causing a nuisance or disturbance on NHS premises giving
Trusts the power to remove offenders from NHS premises. The
Department of Health (DoH) has now published draft guidance
regarding the power to remove for public consultation but do the
powers go far enough?
Criminal Offence
Section 119 of the Criminal Justice & Immigration Act 2008
makes it an offence if, without reasonable excuse, a person causes
a nuisance or disturbance to an NHS staff member on NHS premises,
refuses to leave the premises without reasonable excuse and is not
on the premises to seek medical advice, treatment or care.
Draft Guidance
The guidance makes it clear that use of the power of removal is
voluntary and should be considered as a last resort. Trusts are
encouraged to prevent hostile situations before they arise where
possible.
The guidance defines “nuisance or disturbance” as any form of
low level antisocial behaviour that breaches the peace. This will
include using foul language, verbally abusing NHS staff, using
intimidating gestures towards NHS staff, patients or visitors and
creating excessive noise in waiting areas or wards.
Physical violence or assault is covered by existing criminal
offences and is not nuisance or disturbance behaviour.
The Act makes it clear that an offence is only committed if the
person causes a nuisance or disturbance without reasonable excuse.
This should be viewed objectively and examples are set out in the
guidance.
Power of Removal
If an authorised officer reasonably suspects a person is
committing or has committed an offence under Section 119 they may
remove that person from the NHS premises concerned.
Reasonable force may be used when exercising the power of
removal and this must only be as a last resort.
Limitations
The offence is only committed where the behaviour concerned
occurs on NHS premises. The Act defines these premises as:
- Any hospital vested in, or managed by, a relevant English NHS
body,
- Any building or other structure, or vehicle, associated with
the hospital and situated on hospital grounds,
- Hospital grounds – i.e. land in the vicinity of a hospital and
associated with it.
Where does this leave general practitioners?
Behaviour in a hospital that would amount to an offence under
S119 of the Criminal Justice and Immigration Act 2008 will not be
an offence if repeated in a GP surgery on the High Street.
However the same behaviour would be an offence if the GP’s
surgery was housed in a building associated with the hospital and
on the hospital grounds. When the DoH first consulted on the
proposal to introduce this offence many respondents wanted the
proposals to cover a wider range of premises – perhaps under the
definition of “any place providing a clinical service”. However it
was recognised that it would be difficult for PCTs to act for
independent contractors on their own premises, that there might be
problems identifying who could exercise powers where there were
shared sites, there would be difficulties for small sites to
provide appropriately trained and resourced security staff and
finally that the problem seemed to be more prevalent in the acute
setting anyway.
A missed opportunity
One suspects that hospitals being on large sites, having
multiple entrances, being open around the clock and having a steady
stream of visitors will present different challenges to a GP
surgery where patients tend to be seen for an appointment and then
disperse. However we know that anti-social behaviour is not
confined to the acute setting and perhaps an opportunity has been
missed here to extend the protection to those working in the
community. One wonders whether the police would be more inclined to
assist a Practice Manager if the S119 offence applied to GP
surgeries – whilst the Practice might not have the resources to
exercise a power of removal that could be dealt with by the
police.
Options
Of course the simple way around this is for GP practices to take
on premises within hospital grounds. If a GP practice is located
within hospital premises then the Practice Manager should liaise
with the local NHS Security Management Specialist to ensure that
all the relevant personnel involved in dealing with nuisance and
disturbance behaviour are aware that the practice is covered by
these rules. The Practice will need to make sure it knows how to
report an incident and of course at that stage doesn’t want a
debate with the Acute Trust as to whether they are covered.
For practices located on non-NHS premises they will have to rely
on more mundane remedies. If the “offender” is also a patient then
the practice might classify the behaviour unacceptable thus
justifying removal of the patient from the GP Practice List. If a
practice has a problem with anti-social behaviour then one option
is to discuss the possibility of applying for an Anti Social
Behaviour Order with the Police and Local Authority. Sadly neither
step will achieve the immediate relief enjoyed by those within the
definition of NHS premises.
Of course the guidance on the power of removal remains in draft
form and although the DoH Impact Assessment envisages this becoming
effective in November 2009 that seems optimistic. Time will tell
whether the new powers make a difference. Whilst undeniably a
useful weapon in the armoury it could be one that is used sparingly
in practice.
The DoH consultation remains open until 4 August 2009. Further
details are available from www.dh.gov.uk.
This article first appeared in Practice
Business
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