Clause
104
Offence
of causing nuisance or disturbance on NHS
premises
Mr.
Heath:
I beg to move amendment No. 337, in
clause 104, page 70, line 14, at
end insert
‘and’.
The
Chairman:
With this it will be
convenient to discuss the following: Amendment No. 338, in
clause 104, page 70, leave out lines 17 to
19.
Amendment
No. 339, in
clause 104, page 70, line 38, at
end insert ‘and
(d) any surgery,
clinic or other premises in which medical, surgical or paramedical
treatment is provided to the public by NHS staff
members,’.
Clause
stand
part.
Mr.
Heath:
I am grateful Mr. O’Hara, and I
hope that I can curtail the debate a little.
The lead
amendment would simply insert the word “and”, which is of
limited value. However, I want to explain my concerns about the clause.
Let me say at the start that nothing I say should in any way be
interpreted as to suggest that I do not recognise the real problem of
people causing nuisance or disturbance in hospitals and other NHS
premises. It is absolutely deplorable when that happens, but
unfortunately it is a growing trend. It worries me as much as I am sure
it worries other members of the Committee. I am therefore intent on
ensuring that if there are ways of reducing the risk of such a
disturbance, we should take
them.
8
pm
I
start from the premise that I am not convinced that we need a change in
the law to achieve the Government’s objective. My fear is that
we are back in the wonderful world of sending signals. The clause is
sending a signal that one must not be naughty in hospital. However,
nobody is taking the trouble to ascertain whether the change in law
will help the authorities to investigate, arrest or prosecute
successfully.
On Second
Reading, I drew the attention of the Lord Chancellor to what appeared
to me to be the extremely pertinent case of Porter v.
Commissioner of Police for the Metropolis, 1999. The reason that I drew
attention to that case was that it very clearly set out that where
there is a breach of the peace, a civil trespass and a person refusing
to leave the premises after being asked to leave, the attendance of the
police and an arrest for breach of the peace are entirely in order.
Therefore, there is no problem at the moment with the police
intervening in precisely those
circumstances.
I
do not know whether anybody has had a chance to look at the case since
the Second Reading debate and to see why it should not be applicable in
the case of health service premises as opposed to any other premises.
It seems to me that it gives a clear indication that the police would
not be acting improperly if they were asked to deal with such a
disturbance and to apply existing law. That is the first
point.
The
second point is that if there are, for some reason, the police or
anybody connected with the health service have insufficient powers, why
are the Government seeking to address this nuisance in respect only of
NHS premises rather than other public premises and other Government
offices? As we all know, there are premises run by the Department for
Work and Pensions, for instance, where there is every bit as much of a
risk of violent and disturbing behaviour on the part of the occasional
client as there is in a hospital. Why is the protection afforded by the
clause not open to other premises that are run by the state for the
benefit of the citizen? There is no obvious
answer.
I
come to the third question. If the Minister can satisfy me that it is
necessary to deal with health service premises and not any other
Government premises, why does he restrict the application of this
clause to hospitals? This point was made by hon. Members on both sides
of the House on Second Reading. If the provision applies to hospitals,
it should surely apply to other premises on which treatment is carried
out on behalf of the health service, which are not described as
hospitals: surgeries, clinics and any other premises where a doctor,
nurse or paramedic of one kind or another
practices.
Perhaps
I should declare my interest as a qualified optician, although I have
not practiced within the health service, or anywhere else, for a very
long time. Presumably, there may be circumstances in which I
re-register and provide services under contract to the health service
again. If I did, why would I not be protected; why would a GP not be
protected; why would the practice nurse not be protected in the same
way as a hospital? That is why I tabled amendment No. 339, which covers
all treatment provided by NHS staff members, who are defined in the
clause as anyone working directly for the NHS or under contract to it,
which covers every possible NHS treatment that might be provided. Why
are those other NHS staff members
excluded?
Amendments
Nos. 337 and 338 would remove subsection (1)(c), which makes the
extraordinary exclusion that the one type of person who cannot be
subject to the provision is someone who arrives at a hospital seeking
treatment. An awful lot of the people who cause disturbances in
hospitals arrive seeking treatment—ask anyone who works in
accident and emergency or trauma units and they will confirm that.
Those people are specifically exempt from the provisions of the clause,
which seems
extraordinary. I suspect that it is to avoid any potential human rights
implications of effectively refusing treatment to someone who has
suffered a serious injury. I can only presume that that is the
rationale, but it makes the clause almost ineffective. It means that
staff can shoo off people who are so-called friends of a patient, but
when patients—they may be intoxicated or simply fed up with
waiting, and expressing themselves violently or not liking the
treatment that they are getting—start throwing their weight
around and causing a disturbance, the clause will not apply. A
policeman, if called, will be required to assess whether the person
causing the affray requires treatment and whether they are seeking
it—a diagnosis that I would suggest the average police constable
is not well equipped to
make. There
seem to be a number of anomalies in the clause, well intentioned though
its. I support the intention behind it, but the Minister needs to
explain why it has been framed as it has and allay my suspicion that it
is another press release translated into statute rather than a serious
attempt to mitigate a real
nuisance.
Mr.
Garnier:
I largely agree with the thrust of the hon.
Gentleman’s points. Like him, I fully accept that there are NHS
staff who live in genuine fear of violence and abuse, particularly on
Friday and Saturday nights in some of our inner-city accident and
emergency units. They deserve all the protection that any public
servant should get when looking after the
public.
We
know from the consultation document, “Tackling nuisance and
disturbance behaviour on NHS premises”, that violence against
staff is estimated to cost the NHS between £10 million and
£270 million per annum, depending on the degree of absenteeism
due to sickness that can be attributed to an assault. It is quite a
wide margin, but there is clearly a genuine problem.
I know from
my constituency experience that the accident and emergency unit at
Leicester Royal infirmary is not a nice place to be on a Friday night
once the pubs have emptied, now that the Government’s 24-hour
binge drinking is—no, that was a cheeky remark. We all
understand that a lot of people who are high on drugs injure themselves
for one reason or another and end up in the accident and emergency
room. They cause injury not only to themselves but to the hospital and
ambulance staff who do their best to assist them. I, like the hon.
Gentleman, think that the staff deserve every protection. However,
there is plenty of criminal legislation on the statute book already
that can assist
them.
The
problem lies not so much in the need for new laws, but in the need for
sufficient security staff employed directly by the hospital, or police
officers, to sort people out when they are causing a nuisance. The
police could arrest people and take them away and the security staff
could presumably remove them from the hospital if they were causing a
nuisance, threatening violence or using foul and abusive language and
refusing to leave the premises when invited to do so. I do not think
that there is an absolute right to receive hospital treatment. Is
there? Perhaps the Minister will be able to tell me. People have no
right to remain on hospital premises and to threaten to commit crimes
or to commit them. I would not have any sympathy with anybody, even if
he had a broken arm, who took a swipe at a nurse or was abusive to a
porter and was asked to leave the premises. It must be a condition of
entering the premises that
people behave themselves. I do not see why we should be in the least bit
sympathetic to people who need treatment but refuse to behave properly,
especially if they have, of their own free will, got drunk or taken
drugs that have loosened their
inhibition. Although
the motive behind the measure is good, we need some persuading that it
is necessary, or we will just clutter the statute book with yet more
Acts. About 3,000 additional criminal offences have been created since
the Labour Government came into office. We really need to implement a
few of those. I cite the Criminal Justice Act 2003, which is still not
implemented to a considerable
extent.
I
have just become the patron of the Lambeth branch of the
Alzheimer’s Society. That encourages me to remind the Committee
about something in the House of Commons Library brief, on page
91:
“A
joint response from several charities concerned with mental health,
learning disabilities and Alzheimer’s, available from Mencap,
argues
that:
We
agree that nuisance and disturbance behaviour on NHS premises is a
problem. But we do not support these proposals, which we believe are
unnecessary and badly thought-through, and which we fear will fail to
have the intended effect on nuisance and disturbance behaviour on
hospital premises, while creating additional risks to vulnerable
patients.”
In
particular,
“The
proposals could cause significant risks to the health and safety of
disabled people and other vulnerable people on NHS premises...The
Government has consistently failed to draw a coherent link between the
problem of assaults on NHS premises and the proposed
solution...The vast majority of people who do cause a nuisance or
disturbance on NHS premises will not be covered by the proposals, which
will not make the NHS
safer.”
That
links with the point that the hon. Member for Somerton and Frome made,
relating to subsection (1)(c), which is that people cannot
commit an offence if they are on the
premises
“for the purpose
of obtaining medical advice, treatment or care for himself or
herself.”
Mr.
Coaker:
We have tried to deal with the hon. and learned
Gentleman’s fair and reasonable point. Under clause
105(4),
“An
authorised officer cannot remove a person under this section or
authorise another person to do so if the authorised officer has reason
to
believe”
that
“(b)
the removal of the person would endanger the person’s physical
or mental
health.”
Mr.
Garnier:
I am sure that the Government have tried to do a
number of things. There are already instruments in our laws to make
hospital premises safe, or safer, but that fundamentally requires
people to do the making safe: passing laws does not necessarily do
that.
First,
we need hospitals to be sufficiently funded so that they can employ
in-house security staff who do the job and are pretty forthright in
their work when that is required of them. Secondly, we need sufficient
numbers of police officers available—a Home Office
responsibility —particularly in inner cities at the
trouble spots, which are the accident and emergency departments on
Friday and Saturday nights
Mr.
Coaker:
The hon. and learned Gentleman makes an extremely
important point about those with mental health problems. Under
subsection (1)(a), a person commits an offence if they act
“without reasonable excuse”. I am not saying that some of
the people in the instances that he quoted have an excuse, but I think
that he understands my
point.
8.15
pm
Mr.
Garnier:
I do not think that we need to prolong this
conversation for too long. We all agree that NHS staff need protecting,
just as we all agree that DWP staff and library staff in town halls
need protection. That is not the issue. The question is whether clause
104 and its successor clauses are apt to do what the Government and
everyone else would like. I have my doubts. Essentially, it is a
question of the police and NHS security staff doing the job that the
public employ them to do. I agree that that is not easy and that
primary care trusts and hospital trusts are either running a deficit or
strapped for cash. If there is money to spare, they will spend it first
on hospital equipment or medical procedures, rather than on security
staff, who very often are the first to go if there is a need to make
cutbacks. Again, however, that is a wider issue for the
Government.
Like the hon.
Member for Somerton and Frome, I accept that the clause has not been
put in for a wrong or improper purpose, but I have grave doubts about
whether it will improve the situation. To use an expression that is
often used in defence debates, unless we have troops on the ground, we
will not achieve very much. It might make us feel better, but it will
not achieve anything. I am not going to vote against clause 104; I just
think that it is one of those things that is nice to have, but which
does not achieve
much.
Mr.
Coaker:
I thank hon. Members for
their comments.
The majority
of health bodies that responded to the 2006 consultation, which dealt
with tackling nuisance behaviour and disturbances on NHS health care
premises, felt that the existing law was inadequate for dealing with
low-level nuisance behaviour and that something needed to be done. We
have tried to respond to points put to us by NHS staff about problems
that they experience. I accept that if a doctor, nurse, cleaner or
anybody on NHS premises is attacked—in the sense that we all
understand that word—or violently abused, we would expect the
police to be called. That is the right and proper response. However,
the clauses before us deal with lower-level nuisance behaviour and
disturbances that could escalate into something more serious if they
are not stopped. I take the point that criminal sanctions are available
for serious breaches of the peace and disturbances, but the clauses
address what we were told is a very real need to deal with low-level
nuisance behaviour. I think that they will make an important
difference.
Accepting the
amendments would run a significant risk of criminalising the actions of
a person seeking medical treatment or advice, or of denying them a
service, because they display low-level nuisance or disturbance
behaviour. I say to the hon. Member for Somerton and Frome that I do
not think that it is acceptable to deny medical treatment to those who
need
it. It may be vital to that person’s health and well-being that
they receive the medical advice or treatment that they have sought by
attending hospital. Their need for treatment may far outweigh any need
to remove them from the premises for having committed the offence of
causing a nuisance or disturbance on the premises. This is a strange
reversal of the role, but it may be disproportionate to allow people to
move those who are in need of that medical treatment. The
application of this offence to non-patients only is a targeted response
to a specific problem. Our primary focus is to ensure that patients
receive the care they need and that staff can work in NHS premises
without risk of that disturbance and low-level
nuisance.
Mr.
Coaker:
Will the hon. Gentleman bear with me until the
end? I just want to put a couple of arguments against the points that
he made and then to say something that might be more helpful.
Widening the
scope of the offence to apply to a broad range of NHS health care
settings would prove impractical. GP surgeries, for example, exist in a
different environment from hospital premises. Most hospitals have
full-time security guards and CCTV coverage to protect staff from those
causing a nuisance or disturbance and to deter potential offenders. In
a hospital setting therefore, trained security staff could assist in
exercising the power to remove a person from the premises should they
commit the
offence.
Not
all GP practices—not many in my experience—have such
security services available to them. Therefore enabling the offence to
be committed on such premises would prove problematic as there would be
no guarantee that a correctly trained person would be available to
remove an offender from the premises, using reasonable force if
necessary. Applying these proposals to GP practices would potentially
put the safety of GPs and their practice staff at risk if they were to
use these powers. Applying the offence to a pharmacy setting would also
prove impractical, as it would be difficult to distinguish between
whether the offence was committed against the pharmacist in their
capacity for dispensing NHS prescriptions in their role as an NHS staff
member, or in their capacity for selling general retail goods as a
private business
person.
The
point that I am trying to make to the hon. Gentleman is that there are
issues with respect to extending the scope of the offence outside NHS
premises but, as the Lord Chancellor said, we will reflect on this. I
know that the hon. Gentleman shrugged a little at a couple of the
points I was making, but there are difficulties with extending this. It
is more complicated than simply saying that the offence will be
extended to premises such as NHS doctors’ surgeries or some
others that might be considered to be associated with the NHS. The Lord
Chancellor committed to looking at this and certainly I will commit to
do that
too.
I
do not want to go into too much other detail about clause 104. I
welcome the points that have been made in the sense that the issue is
not that people oppose the clause, but whether they believe it will add
anything to the safety of staff and the security of those who act
appropriately in hospitals. All I can say is that this is a
serious attempt to plug what we see as a gap. It is not in place of the
police. It is an attempt to prevent the escalation of nuisance
behaviour into more serious behaviour that might require the attendance
of police officers. I hope that in the light of those comments the hon.
Gentleman will consider withdrawing his
amendment.
Mr.
Heath:
I am grateful to the Minister. I was not
desperately convinced by some of his arguments. I wonder whether he
entirely convinced himself. The idea that a pharmacist does not need
protection if he happens to be selling a comb with the packet of
aspirins that he is selling at the time seems a threadbare argument. I
am also concerned that a Home Office Minister should come out with what
is to me at least the novel argument that a person can commit an
offence only if there are security staff available to detain him or to
notify a constable. That appeared to be what he was saying. He seemed
to be saying that that could be an offence if it was in a hospital,
because there were security staff and CCTV, but if it was in a place
where there happened not to be security staff and CCTV, it would not be
an offence at all. I think that, if we require the attendance of a
police officer for an offence to be committed, that has rendered most
of the criminal law inoperable in most of my constituency. That seems a
novel concept in the interpretation of statutory
offences.
I
also think that the Home Office has not cottoned on to changes in the
way that we operate medicine in this country. I say that because
hospitals will be, if Lord Darzi of Denham has his way, a thing of the
past. We are going to move away from hospital provision towards smaller
units, the so-called polyclinic. The polyclinic does not constitute a
hospital and it is available for a particular range of medical or
surgical procedures, but I would say that it falls between hospital
provision and a general practice surgery. All those polyclinics, which
the Government now have as a stated policy for the provision of
services, will fall outside the ambit of the clause. Therefore, I think
that the Minister needs to look seriously at how he chooses to define
NHS premises for the purposes of this clause.
My last point
concerns people with mental health problems, dementias and the like.
The Minister drew our attention to clause 105(4)(b) in that respect. I
doubt very much whether it is appropriate to require an
“authorised officer”, by which we can assume that we mean
a security officer, to have the necessary training to form a view that
has any validity in law as to what damage he or she may cause to the
“physical or mental health” of a patient by any action
that he or she may take.
The
Chairman:
Order. We are not straying onto the grounds of
the next clause yet, I
hope.
Mr.
Heath:
That would be quite wrong, Mr.
O’Hara. I was simply responding to the point made by the
Minister, who drew our attention to the next clause in partial answer
to the point made by the hon. and learned Member for Harborough. If the
Minister can use the next clause as a defence for his position, I
think
that I must be in order to attack his defence of his position, in
response to the amendments and the clause stand part that is under
discussion.
In
summary—
Maria
Eagle:
He is going to say it all again
now.
Mr.
Heath:
I am not going to say it all again; I say that to
the Minister, who interrupts from a sedentary position and extends my
remarks in a way that is uncalled
for.
I
would like to say one particular thing in conclusion: the Minister
makes his entire argument on the basis that there is no provision at
the moment for dealing with low-level nuisance. He says that we are
covered for assault; we all know that and we know that we are covered
for serious violence offered to members of staff. However, he says that
we are not covered for low-level nuisance. I believe that we are. The
Minister has not addressed that issue. He has also not explained why,
when the NHS bodies come to the Home Office and say that they have a
problem in this regard, the Home Office does not answer,
“Actually, you haven’t if the law is interpreted
properly, and we will issue new guidance to the police and to your
security services, so that you know where you stand.” Instead,
he simply says, “Oh, you say you have a problem, so let’s
change the law.” I think that that is rather a superficial
approach for the Home Office to take, and he still has not convinced me
of the utility of the clause in its present
form.
Having
said that, I do not intend to press my amendment to a Division because
I hope that the Minister will still reflect of some of the issues that
I have raised and return to them on
Report.
8.30
pm
Mr.
Coaker:
I said to the hon. Gentleman that I will reflect
on what he has said.
Mr.
Heath:
I hope that the hon. Gentleman will be as good as
his word. In fact, I am confident that he will be. On that basis, I beg
to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn.
Clause
104 ordered to stand part of the
Bill.
Clauses
105 to 107 ordered to stand part of the
Bill.
Schedule
18 agreed
to.
Clause 108
ordered to stand part of the
Bill.
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