Posted By Linda Westrupp
Jim
Reassurance for staff? This seems like an exercise to look as if something is being done. However, they seem to have forgotton Social Care who deal with the same people and the same issues. Are THEY going to get new regs?
If so, who gets the next batch Local Authorities, Tax staff, Benefits staff?
Linda

Posted By Murray
Dear Jim
I have just posted this consultation up on the IOSH consultations pages and would be most grateful for any views IOSH members have on this document, positive or negative. Please let me have your thoughts by Friday 25 August 2006 so that I can formulate them into an IOSH response.
Kind regards
Murray

Posted By Jim O'Dwyer
Thanks for your interest in this thread!

I'm convinced that there is no need for more legislation and I'm concerned that the information in the Consultation Paper is misleading, in so far as, it suggests that even where a person's behaviour is upsetting to others and preventing other patients from receiving treatment, they can't be removed from the premises!

Here's an excerpt from the Easy Read Version of the Consultation Paper to back up what I've said.

"Sometimes people using the NHS or members of the public cause trouble in hospitals and other places where people receive treatment. Even though they do not attack a person, they behave in a way which upsets others and stops patients being treated. At the moment, the hospital is not able to remove these people. They have to call the police to remove them. Sometimes, the law does not allow the police to remove them."

I'm concerned because believing that they are powerless at present ("toothless tigers") may persuade "stakeholders" that there is a need for new legislation.

In my opinion, the Law on Tresspass together with Citizens' rights/duty under Common Law to take action to "prevent a Breach of the Peace" and S3 of the Criminal Law Act (powers of arrest)provide for appropriate action to curtail nuisance behaviour.

The only thing preventing Trusts from taking positive action against nuisance behaviour is the absence of security guards and that is still going to be the case whether or not there is new legislation!

In short, any money spent on introducing new legislation is predictably going to be wasted.

What the NHS Security Management Service should do is clarify the legal position (and the options available to Trusts) and provide Guidance and Instructions for Trusts to follow.

This should start with advice to prepare a 'core group' of staff to respond to calls for assistance and take responsibility for behaviour management decisions.

Please keep your comments coming!

Best wishes,

Jim O'Dwyer













The Easy Read version of the Consultation Paper proposes that

Posted By Jim O'Dwyer

Jeffrey,

Here is a link to a really good article on trespass:

http://www.freebeagles.o...w/CL_bp_Porter_full.html

If you'd like to see the kind of information on trespass that security guards (and managers) should be aware of use the link below. Then click through the "Training Programme" until you come to the section on "Lawful Authority for Physical Intervention". You'll find the information there.

http://www.aegis-trainin...ecurity/LINKS/index1.htm

Best wishes,

Jim O'Dwyer

Posted By Jeffrey Watt
Jim

Very useful. I think those controlling public property (Hospitals, schools, leisure centres) have a problem with regard to the definition of trespasser i.e. the public in essence own the building and cannot be trespassing no matter how obnoxious they may be.

What do you think?

Jeff

Posted By Jeffrey Watt
Jim

My reading of the article that considered the case of the lady ejected from the electricity showroom made me think that the Police can be asked to attend such incidents and the LJ goes into quite a bit of time explaining this using examples of peaceful protest on private land. He basically says it is one of the Police's jobs to eject people if that prevents a breach of the peace i.e. the Police are allowed to be pro-active in preventing a crime.

That said, I am with you 100% on the availability of the Police to do this type of work. Any public authority relying on the Police to be available to act as "chucker out" may have a long wait.

Re your point on qausi public places. I am being devil's advocate here but I would contend that the local A+E is a public place not a quasi-public place like a pub or a car showroom. I don't know enough about trespass but nothing in the Electricity Board case adresseses the issue of totally public property, it only refers to private property that is quasi-public and your right to remove someone by force after you have made a reasonable polite request of them to leave. The defence in the electricity board case inferred that the area was public and therefore the lady could not be removed, this says to me you cannot be ejected from a public place by virtue of the law of trespass. Maybe some other law but not trespass.

Are you convinced Jim?

Jeff

Posted By Jim O'Dwyer
Guys, the more I read the Consultation Paper the more concerned I’m getting about the way it’s been drafted.

I’m going to submit some more on this soon – but meanwhile I’d invite you to read the Partial Regulatory Impact Assessment document that accompanies the Consultation Paper (and see for yourself!)

http://www.dh.gov.uk/ass...04/13/59/93/04135993.pdf

Best wishes,

Jim O'Dwyer

Posted By Paul Leadbetter
Although the NHS is 'publicly owned', some of their premises are now rented from the private companies which built them, under the PFI. Does this change any of the arguments above?

Paul

Posted By Jim O'Dwyer
Jeff,

Here's confirmation about the right Trusts have to remove/ exclude people who behave in an unacceptable way.

It's the "PROCEDURE FOR CARE OF INDIVIDUALS WHO ARE VIOLENT OR ABUSIVE" but more commonly known as the Yellow/Red card system, which was introduced under the Zero Tolerance Campaign in 2001 (which incidently has been curtailed by the NHS SMS and all the valuable info on the web site removed! The "campaign is now called "Tackling violence towards NHS Staff")

The "Procedure" was developed to provide Trusts with a mechanism (i.e. structured decision making) for countering "unacceptable behaviour" by patients/visitors. The process includes (as a last resort) the option to remove and/or exclude an individual from the Trust's premises.

The following are examples of behaviours commonly considered unacceptable on NHS Trust premises and which may result in the implementation of the Yellow/Red card procedure and ultimately the removal/ exclusion of an individual from the Trust's premises:

•Excessive noise, e.g. loud or intrusive conversation or shouting.
•Threatening or abusive language involving excessive swearing or offensive remarks.
•Derogatory racial* or sexual remarks.
•Malicious allegations relating to members of staff, other patients or visitors.
•Offensive sexual gestures or behaviours.
•Abusing alcohol or drugs in hospital.
•Drug dealing.
•Wilful damage to Trust property.
•Theft.
•Threats or threatening behaviour.
•Violence.

Here it is reflected in a NORFOLK & NORWICH UNIVERSITY HOSPITAL NHS TRUST Policy Document.

http://www.nnuh.nhs.uk/docs%5Ctrustdocs%5C71.pdf

The Consultation Paper mentions the Yellow/Red card scheme in the "Partial RIA" that accompanies the Consultation Paper. It says that discussions with 38 NHS health bodies suggested that implementation of the scheme has been patchy, possibly due to a lack of authority behind the policy.

The Consultation Paper's author also states "However, this scheme was not backed up by legal powers." ??? before adding "Furthermore, there was no clearly defined structure in place across the NHS to deal with the administration of the scheme and there were no overall standards or guidance.

The Consultation Paper reinforces the view that the legal powers of Trusts are inadequate where it continues, "The scheme is likely to have been more widely used if it had been backed up by clear legal powers and the structure to implement these."

Why say that when the law provides Trusts with ample scope for dealing with unacceptable "nuisance behaviour"?

More later,

Best wishes,

Jim O'Dwyer

P.S. Those working in the NHS will know quite well why the Yellow/Red Card scheme hasn't been implemented at their Trusts. It has nothing whatsoever to do with an absence of adequate legal powers - it's a culture thing!

Posted By Jim O'Dwyer
Hi again!

Here is my case for saying a resounding "No!" to the proposals.

The NHS Security Management Service is proposing the introduction of new legislation that criminalises certain kinds of disruptive, nuisance behaviour and provides for offenders to be removed from NHS Premises and also fined (up to £1000).

Three examples are given in the Consultation Paper of the kind of behaviour that the proposed new legislation will target:

1. Someone not needing treatment but pestering staff and disturbing patients.

2. A group of teenagers with no reason to be at the hospital, but being loud and refusing to leave.

3. A person with no reason to be at the hospital, creating a mess and smoking after they have been asked to stop.


Examples of incidents:

• A mental health trust in the north of England has encountered problems with an ex-service user who, after discharge, consistently returns to the premises, without good reason and not requiring medical treatment, causing a disturbance and nuisance to staff and other service users.

• A large acute trust recently had problems in dealing with a large group of individuals attending a hospital with a family member. The group persistently ignored no smoking signs, created mess in the toilets and caused a nuisance to other visitors and patients.

• A Local Security Management Specialist within a health body told how he and his security staff often felt like ‘toothless tigers’ when waiting for the police to attend and remove nuisance individuals: “The police are under constant pressure to deal with serious incidents. When we request assistance in the removal of individuals, more often than not this is a low-profile police response and we can end up babysitting these individuals for hours before we are able to remove them with police assistance”.

Since, existing legislation appears to already authorise the removal/ exclusion from NHS Trust premises of people who behave in an unacceptable, disorderly, disruptive way, the only ‘additional power’ that seems to be being proposed is the ability to fine offenders. This process will have to be administrated through the Criminal Justice System and require evidence of the offence to be made available to the court. Enforcing the new laws will present great difficulty for NHS Staff - probably to the extent that the ‘new power’ (like the existing Yellow/Red Card Procedures) will rarely if ever be used.

There may be some deterrent value to being able to say “If you behave in this way you could get ejected from the premises and fined up to £1000”. But, do you think for one minute that the people referred to in the examples above would have moderated their behaviour as a consequence?

If like me you answered “No”, you’ll probably also agree with me that there is so little to gain by “criminalising” the kind of low level nuisance behaviour referred to that it’s not worth doing and I hope you’ll echo my view that the proposals should be dropped.

By saying “No!” you’ll be helping to prevent a waste of a lot of money and you'll also be protecting our civil liberties.

Something you should be aware of is that similar legislation to that being proposed by the NHS SMS already exists for the education sector.

Section 547 of the Education Act 1996 (c.56) created an offence of nuisance or disturbance on school premises with a related power, exercisable by a person authorised by a local education authority, to remove a person committing the offence.

(The NHS SMS say that although there are no national statistics on the use and impact of this legislation within schools, it is understood to have helped create a deterrent effect in some areas against such behaviour.)

If the NHS SMS’s proposals are carried through to become law, the next bodies to apply to criminalise nuisance behaviour will be likely to be Councils/Local Authorities, Passenger Transport facilities, etc.

And, based on the existence of the legislation for our schools and our National Health Service, refusing its introduction will get more and more difficult – until ‘low level, nuisance and disruptive behaviour’ becomes a criminal offence in all areas.

The next step might well be that demonstrating opposition to anything through passive (i.e. non violent) resistance would become outlawed!

That wouldn’t be in the public interest!

Well, would it?



What could be done instead?

There is no single solution unfortunately – since every situation will be entirely unique.

However, the Consultation Paper has highlighted a need for the NHS Security Management Service to once and for all clarify the legal position and the ‘options’ available to Trusts to take in the event of nuisance, disruptive behaviour onsite.

Local Security Management Specialists should know what the ‘available options’ are and be able to offer guidance to the Person Responsible at the premises.

(Note: Although the Consultation Paper proposes that the LSMS be appointed as the Person Responsible, it is extremely unlikely that Trusts will authorise LSMS’ to be the decision maker. The justification would probably be, because a ‘medical’ opinion would be a necessary part of the decision making process.)

Staff should be informed about why some people behave in a way that represents a nuisance and/or causes disruption to services to others and trained to anticipate problem behaviour and respond appropriately (i.e. with particular regard to the sufficiency of the resources to hand to implement Trust Policy.)

The NHS SMS should also act as a ‘consultation resource’ for Trusts to contact in the event of particular difficulties with patients or visitors behaviour – and not hesitate to refer situations outside their experience to external consultants.

Best wishes,

Jim O’Dwyer