healthcare update - issue nine
New powers to deal with assaults on staff
Assaults on members of staff in the NHS have become an
increasing problem for employers wishing to protect the health,
safety and welfare of their employees. Violence and aggression
towards staff has long been recognised as unacceptable, however the
powers of the NHS to deal with it have, up to now, been
limited.
In 2007/08 there were 55,993 assaults recorded on NHS staff
members. This is part of a gradual reduction in assaults, coming
down from 60,385 in 2004/05.
However despite this decline, the Government recognises that
assaults against members of NHS staff are still far too
prevalent.
As a direct result, new legislation has recently been introduced
aiming to deal with the problem.
Sections 119 – 121 of the Criminal Justice and Immigration Act
2008 targets people who cause a nuisance or disturbance towards an
NHS staff member. (NB: the Act does not however cover nuisance or
disturbances caused towards members of the public or other patients
on NHS premises).
Although legislation already exists to deal with this type of
behaviour in the form of the Public Order Act 1986, the 2008 Act
empowers authorised officers (or those who they in turn authorise)
to remove people suspected of committing the offences outlined in
section 119, from NHS premises.
The offence outlined in section 119 occurs where:
- A person causes a “nuisance or disturbance” to an NHS
staff member
- Refuses to leave NHS premises when asked to do so by a
constable or NHS staff member
- The person is not on the premises for the purpose of receiving
medical treatment or advice
The offence can only be committed by people who are not on the
premises for the purpose of receiving medical advice or treatment.
This includes people who have already received treatment and people
who have been refused medical treatment in the last eight
hours.
It should be noted that under section 120 an ‘authorised
officer’ (defined as any English/Welsh staff member authorised by a
relevant NHS body to exercise the powers which are conferred by
this section... in respect of English/Welsh NHS premises) cannot
remove a person from the premises (or authorise someone else to do
so) if they have reason to believe that that person requires
medical advice, treatment or care or that removing that person
would endanger their physical or mental health. (However, these
safeguards only apply to an authorised officer and not to a
constable exercising the same powers under the Act).
Although seen by some as a significant step forward in dealing
with violence and aggression, the new powers have been the subject
of criticism. In particular that the type of behaviour criminalised
by the Act can already be dealt with under existing legislation -
raising the question whether there is a need for it at all.
Arguably there is a need. While it is certainly the case that
some applicable legislation exists, the 2008 Act speeds the process
up by empowering authorised officers to deal with the people
suspected of committing these offences directly, rather than having
to wait for the police to attend.
Likewise, by making these actions a specific crime the
government is sending out a strong message that such behaviour is
not to be tolerated.
The 2008 Act has also been criticised due to the fact it only
covers hospital premises. Hospices and private healthcare premises
at which NHS staff are employed to work are not covered by the 2008
Act. In part this was because hospitals present a unique
environment in which CCTV monitoring is available and combined with
the presence of security staff, makes it a far more controlled
environment in which to implement these new powers.
Inevitably, how these powers will work and how they will be used
will depend largely on the guidance provided and the way in which
Courts interpret the legislation.
However, the Act provides a helpful additional tool in the
armoury to tackle violence and aggression to staff, albeit the
success of these powers will depend largely on the willingness of
trusts and their staff to use them.
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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.