healthcare update - issue five
Department of Health consults on exercise of the power of removal from NHS premises
Introduction
The Criminal Justice and Immigration Act 2008 introduced an
offence of causing a nuisance or disturbance on NHS premises. The
Act gives Trusts the power to remove offenders from NHS premises.
The Department of Health (DH) has published the draft guidance
regarding the power to remove for public consultation. The closing
date for responses is 4 August 2009 and
full guidance is available on the DH website.
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. The
offence applies to NHS hospital premises only and excludes
patients.
The draft guidance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. If this
behaviour is present, Trusts should follow their usual security
arrangements and consider contacting the Police.
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 (defined as staff who have been
authorised by the relevant NHS body to exercise the power of
removal) reasonably suspects a person is committing or has
committed an offence under Section 119 they may remove that person
from the NHS premises concerned. The guidelines suggest a form of
checklist to be followed when considering whether to exercise the
power of removal.
Staff involved in this process will need training, support and
resources. The draft guidance makes it clear that to determine
whether the person has a reasonable excuse for their behaviour will
require the authorised officer to engage the person causing the
nuisance or disturbance. This immediately puts this person in a
potential position of conflict where the person concerned is
already agitated.
Reasonable force may be used when exercising the power of
removal; however, this must only be as a last resort. It is clear
that a team of appropriately trained personnel will need to be
available to exercise this power.
It is also clear that appropriate records should be maintained
recording the chronology of events, the facts of the situation and
the basis upon which decisions were taken. It might be helpful for
the NHS SMS to publish a recommended form of ‘nuisance and
behaviour incident report form’ to help Trusts approach this issue
in a consistent manner.
Whilst undoubtedly the power of removal will be a useful weapon
in the arsenal of the NHS, it is one that must be managed carefully
because once it is deployed, it places Trusts at risk of claims
from staff if they suffer injury as a consequence of inadequate
training, incomplete procedures or failure to follow guidelines.
There is also scope for claims to be brought by persons removed.
Any complaints about exercise of this power will be dealt with
under the normal NHS complaints process.
The authorisation of NHS staff
The guidelines recognise that the role of the authorised officer
is important and carries significant responsibility and it is
therefore recommended that the authorised officer is someone in a
managerial position whose current role includes decision-making
responsibility. There will need to be sufficient numbers of
authorised officers present on the premises 24 hours a day, 365
days a year.
Next steps
The DH consultation remains open until 4 August 2009. Working
through the consultation and draft guidance will alert Trusts to
the likely framework that will be implemented and will allow them
to identify the personnel who will be part of the team, the
training requirements and reporting processes required.
talk to us
save to PDF
The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.