Rebecca Fitzpatrick, Helen Badger and Carl May-Smith, Partners at Browne Jacobson provided an overview of the legal frameworks in place that can assist Trusts when managing violent, abusive and racist patients
Kathryn Fearn, Associate Director of Legal Services at University Hospitals of Derby and Burton NHS Foundation Trust (UHDB) introduced the session and explained she had requested a Shared Insights call on this topic due to a spike in incidents with the hope of sharing good practice.
Rebecca Fitzpatrick, Helen Badger and Carl May-Smith, Partners at Browne Jacobson provided an overview of the legal frameworks in place that can assist Trusts when managing violent, abusive and racist patients. They focused on the legal aspects from the patient perspective, employment concerns and regulatory aspects.
We were delighted to be joined by Sergeant Ben Wildman, of Derbyshire Constabulary who spoke about the Police perspective when it comes to managing violent, abusive and racist patients and what Trusts can do to assist the police in investigating these incidents.
Rebecca Fitzpatrick explained that under the NHS Standard Contract 2020/21 Technical Guidance, where a patient behaves in a violent, aggressive or abusive way (including racism or homophobic abuse) the Trust can consider withholding treatment from that patient. She outlined a number of caveats and considerations Trusts must take into account when considering whether to withhold treatment:
Where any of the first three caveats apply, it is likely there will be a legal duty to provide some form of treatment to prevent a deterioration. Where a Trust is entitled to refuse care due to a patient displaying violent or discriminatory behaviour, there is an obligation in these circumstances for the Trust to:
In Primary Care settings, steps can be taken to manage risk for example arranging for appointments to be held outside of the home/doubling up of staff etc – there will need to be discussion with the MDT and commissioners to arrange this.
In some cases abusive relatives can cause issues for example obstructing patient care. If the patient lacks capacity to make decisions about their care and or contact, this can sometimes be managed via the decision making framework under the Mental Capacity Act (for example limiting/preventing contact during care or treatment periods/supervised contact/contact away from the care setting and so on). In some cases police involvement may assist if the relative’s behaviour amounts to a criminal offence such as harassment.
In relation to vexatious or abusive complainers who for example constantly call blocking lines, constantly email blocking inboxes, record without permission etc, there are certain offences that may apply under miscellaneous legislation such as the Malicious Communications Act and contact restrictions may also be appropriate in some cases.
Helen Badger looked at the key points from an employer’s perspective and explained that whilst it is difficult for an employer to be found liable in situations where an employee is harassed in the workplace by a third party, such as a patient, an employer’s inaction in response to such incidents could lead to the following:
She outlined some practical tips on what an employer can do to support employees who are victims of an incident:
During the discussion that followed people shared their organisation’s experiences of using body worn cameras, dealing with online/electronic harassment and practical tips such as training staff and standardising documentation for reporting to the police.
Sergeant Ben Wildman spoke about practical steps hospitals can take when incidents occur and set out his top tips for Trusts and staff to give the police investigation maximum impact/likelihood of a successful prosecution:
Below is a checklist that you can also download here:
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