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Memorandum submitted by the National Association for Healthcare Security (NAHS) (CJ&I 400)
I am writing to you in my capacity as the President of the National Association for Healthcare Security (NAHS).
The Criminal Justice & Immigration Bill is on its way through Parliament, and it is anticipated to reach the House of Lords early in 2008. May I draw your attention to Part 9, ANTI-SOCIAL BEHAVIOUR, "Nuisances or disturbances on hospital premises" Sections 104 - 106. In the drafting stage, these sections gave rise to considerable concern amongst the membership of the NAHS and other healthcare practitioners. These were expresses to the sponsors of this particular part of the Bill.
The Commons Committee deliberated on the clauses of the Bill on Thursday 8th November 2007 and disappointingly no amendments were made to these specific sections.
Below I have delineated some of the issues and concerns in the hope that they can be taken into account before the Bill finally passes into legislation.
The current position regarding the National Health Service (NHS), is that in parts of certain premises, for example care homes, hospitals, clinics in the community and GP practices, the public have implied right of access for a large part of a normal working day, to attend as a patient, out-patient or as a visitor.
Under Common Law, the owner of any premises may refuse admission or withdraw any invitation for a person or persons to remain on his property thus putting them in the category of a trespasser. The owner, in this case the NHS, or his agent, which may include suitably trained security officers or other trained staff acting on behalf of the owner or management, may ask a trespasser to leave and if he does not do so may use the minimum amount of force necessary to eject that person from the premises.
Apparently and indeed unfortunately, a large percentage of the persons within the NHS were consulted, prior to the drafting of sections 104 - 106 of the Bill, had little or no knowledge of the definition of a trespasser and how effectively they can be, and are on a daily basis, dealt with at Common Law in a healthcare setting.
From a practical point of view many trespassers on NHS premises go unnoticed, and it is those who draw attention to themselves by unacceptable behaviour or otherwise arousing suspicion to which attention is directed. If the circumstances point to criminal activity the police should be called to assist. The police should also be called where violence from one or more trespassers is anticipated or a number of trespassers deliberately provoke authority.
It is important that NHS staff dealing with trespassers who are ejected or detained pending the arrival of the police, act reasonably and keep a record of everything said and done in the presence of the trespasser.
It is no part of a police officer's duty to assist security officers or other NHS staff to eject a trespasser unless a breach of the peace has occurred or is likely to occur. An officer may, however, render assistance to eject a trespasser in the absence of an actual or threatened brief of the peace if the circumstances are exceptional (e.g. if the representative of the NHS is physically not capable, aged or infirm), but he will bear in mind that such intervention is, strictly speaking, not in the character of a police officer but rather as a private person aiding the NHS employee and, in law, acting as his servant for that special purpose. Therefore no offence of assaulting, resisting or wilfully obstructing him in the execution of his duty can arise. The police officer will act only in the presence and on the expressed application of the lawful occupier or agent, and after the person has refused to leave on a formal request made in the presence of the police officer. He will himself first use persuasion and bear in mind that he must use no more force than is necessary for the purpose and will not take the person into custody, but leave him perfectly free as soon as the street or public road is reached; for, although the intruder in such a case is wrongfully on the premises, he has not been guilty of a criminal offence.
In an important House of Lords case Albert v Lavin (1981) 3 ALL ER 878, it was decided that it was the duty (but a duty which cannot be legally enforced) at common law of every citizen in whose presence an actual or reasonably apprehended breach of the peace was being, or about to be, committed to make the person who was breaking or threatening to break the peace refrain from doing so and, in appropriate cases, to detain him.
The possible isolation, or small numbers, of NHS staff in Community Clinics, Care Homes, GP surgeries and Ambulance Stations means that they could particularly benefit from the measures contained within this Bill, especially with the creation of an offence for which a constable can take action. Unfortunately they seem to have been left out. Also patients and visitors are not give protection from a person causing a nuisance or disturbance to them.
I would like to refer to some specific parts of the Bill and offer some amendments to be considered.
The Bill should specifically state that it in no way prevents NHS management from dealing with trespassers under Common Law as above should it be appropriate and they wish to do so.
The heading before Section 104, 5th word delete 'hospital' and insert 'NHS', the heading should then read: "Nuisances or disturbance on NHS premises"
Section 104 Offence of causing nuisance or disturbance on NHS premises
(1) It is not clear when reading (a) and (b) as to whether there is one offence of causing a nuisance or disturbance and refusing to leave, or that refusing to leave is a separate offence. (1) (a) 2nd Line. After "to" insert "a member of the public or"
(4) The definition before (a) 1st Line. Delete 'hospital grounds' and insert 'NHS premises grounds' 10th word delete 'hospital' and insert 'premises'. The definition should then read:
'NHS premises grounds' means land in the vicinity of the 'premises' and associated with it.
(4) (a) 1st Line. Delete 'hospital' and insert 'premises'.
(b) 2nd Line. 1st word delete 'hospital' and insert 'NHS premises'. 5th word delete hospital and insert 'its'.
(c) Delete 'hospital' and insert 'NHS premises'.
Section 105 Power to remove person causing nuisance or disturbance
(4) (a) 2nd Line. After 'herself', insert 'and has not been refused the advice, treatment or care during the last 8 hours'.
No attempt has been made in the Bill to define 'nuisance' or 'disturbance'.
I hope you find this letter helpful and I look forward to hearing from you.
November 2007 |