If these kinds of nuisance and disturbance behaviours are not promptly challenged and curtailed, they can escalate into more serious situations, such as physical assaults on staff, theft of NHS assets and damage to NHS property.
The effect on staff
Although the kinds of incidents referred to above may not be as immediately and obviously harmful as other incidents, such as those involving violence, they can nonetheless contribute to lower staff morale, increase stress, increase absenteeism and, potentially, also result in staff leaving the NHS altogether.
Negative impact on patient experience
People need to feel safe and secure in order to perform to their best. The same is true of patients.
Having to experience and put up with nuisance and disturbance behaviour, especially when it dawns that the staff don’t seem to be able to (or minded to) stop to it, is bound to be disconcerting to any patient.
Anything that causes patients to suffer anxiety, alarm or distress can negatively impact on their ability to cope with their medical condition and also adversely affect recovery rates.
Every situation will be unique
The wide variation in the kinds of nuisance and disturbance behaviour that can occur in hospital settings means that guidance cannot be specific and explicit.
Every situation will be unique and will need to be treated individually in the particular circumstances.
However, dealing successfully with any instance of nuisance or disturbance behaviour will usually require patience, tact, diplomacy and effective use of Conflict Resolution skills.
Most people will respond positively to a quiet word from staff.
But, if they don’t, what can be done?
The first thing to do
The first thing to do should be to establish the troublemaker’s identity and status, i.e. are they a patient or, someone who needs medical advice, treatment or care, or are they a visitor?
The answer will affect the options available to manage the behaviour and shape the staff response.
If the ‘troublemaker’ needs medical advice, treatment or care
If the person causing a nuisance or disturbance is a patient or someone who needs medical advice, treatment or care, their behaviour will need to be managed in accordance with the NHS Trust’s policy on ‘Unacceptable Behaviour’.
This will generally commence with a verbal request by staff to cease the nuisance or disturbance behaviour and this may be supported with an explanation as to why the request is being made – including the deleterious effects on staff and patients and the disruption to delivery of NHS services.
The next level would be to verbally inform the Service User that failure to immediately cease the nuisance or disturbance behaviour could result in action being taken by the NHS Trust to:
- Elect to provide any medical advice, treatment or care services needed at a different location.
- Set conditions governing future attendances at the hospital (e.g. only permitted to attend the hospital if they have an appointment in writing.)
- Commence Civil proceedings, if necessary, to prevent a repetition of the behaviour.
The threat of becoming embroiled in legal proceedings with an organisation of the scale of an NHS Trust is not something most people would easily dismiss and being suitably advised of the potential ramifications of continuing to cause a nuisance or disturbance is usually enough to secure compliance with acceptable behaviour standards. (No-one really wants the inconvenience of having to attend a different site to get treatment!)
If Security Officers are called to the scene of nuisance or disturbance behaviour, their efforts should be focused on verbal de-escalation and preventing escalation, whilst also, ‘standing by’ to prevent a Breach of the Peace.
Common Law – Breach of the Peace
Breach of the (Queen’s) Peace is an ancient Common Law Offence that occurs wherever harm caused by violence:
- is happening
- has just happened
- is just about to happen to a person
- is just about to happen to a person’s property in their presence.
And also, where a person: (My bold)
- has been put in fear of violence (e.g. where someone has been threatened with imminent violence)
- has been put in fear of harm happening to property through violence (e.g. where someone has threatened to imminently damage property)
- acts in a manner which is likely to provoke others to behave violently. (My bold)
Preservation of the Queen’s Peace is a ‘duty’ imposed on all citizens (including Security Officers) and it translates to a lawful authority to intervene pre-emptively, using reasonable force if reasonably necessary to:
- prevent a Breach of the Peace occurring (i.e. where violence is imminent)
- prevent a continuance or a renewal of a Breach of the Peace.
The duty (and legal authority) applies at all times and in all places.
Lord Diplock in Albert v Lavin  said:
“Every citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking or threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty, although, except in the case of a constable, it is a duty of imperfect obligation.”
It may be seen from the above that, if any kind of nuisance or disturbance behaviour is likely to provoke violence from others (i.e. not Staff or Security Officers), the law provides for reasonable force to be used pre-emptively to prevent that violent outcome.
Note: It is a well-established principle that to detain a person against their will without arresting them is an unlawful act. However, people who have been restrained in order to prevent a Breach of the Peace do not necessarily have to be detained pending arrival of the police – they can be released if the risk of violence has passed.
Is the nuisance or disturbance behaviour clinically related?
‘Challenging Behaviour’ is a term used to describe any non-verbal, verbal or physical behaviour (including non-compliance) by service users which makes it difficult for staff to perform clinical tasks and/or poses a safety risk.
Challenging Behaviour can range from mildly uncooperative to highly disruptive and dangerous conduct.
Challenging behaviour is often seen in people with health problems that affect communication and the brain, such as learning disabilities or dementia.
Clinically Related Challenging Behaviour (CRCB) refers to ‘Challenging Behaviour’ arising or resulting from clinical factors that seriously impair the person’s mental capacity (whether temporary of permanently) and, consequently, their decision making and behaviour.
If a person causing a nuisance or disturbance is a patient who has previously been assessed as likely to present CRCB, the way to ‘manage’ their behaviour should be set out in the patient’s care plan (Positive Behaviour Support Plan).
The PBS Plan may contain advice on how best to manage the patient’s behaviour and information about any known sensitivities. So, it will always be best to refer to the Patient’s PBS Plan, before taking action to intervene.
If the patient does not have a PBS Plan, the NHS Trust’s Safeguarding Lead should be alerted and a multi-disciplinary team should be convened as soon as possible to devise an appropriate PBS plan for the patient, so as to reduce the potential for incidents to re-occur.
Note: Challenging Behaviour is often a sign of distress and unmet needs rather than any deliberate intention to be challenging. Challenging Behaviour can also signal a need for urgent medical attention!
Removal from the premises, as a last resort
The right to health is internationally recognised as a fundamental human right and it means that NHS Trusts (as Public Authorities) have a duty to do everything they can to make healthcare facilities, goods and services available and accessible, equally, to all.
This translates to a legal right for a person to be allowed access to hospital premises for the purpose of obtaining medical advice, treatment or care for himself or herself.
However, NHS Trust premises are not classed as a public place (i.e. a place to which people have an unconditional right to access and remain), but as a place to which the public have an implied right of access, subject to reasonable conditions which an NHS Trust may impose – such as, behaviour standards.
So, there needs to be a balancing of the respective ‘rights.’
It seems to me that, depending on the circumstances, it may not always be ‘illegal’ to deny/delay a person from accessing healthcare services, even if they have a need for them. For example, Mental Health settings often refuse to admit a patient because the facility is already full – no bed available.
But, historically across the NHS, the philosophy has always been to consider the right to access medical services as ‘sacrosanct’ and it is treated as a ‘right’ that takes primacy over all other considerations.
So, if the person causing the nuisance or disturbance is a patient, or a person who needs medical advice, treatment or care, the NHS Trust’s policy would probably NOT support action to remove them or exclude them from the hospital premises.
However, if the ‘troublemaker’ is not a patient and does not need medical advice, treatment or care and if removal would not endanger their physical or mental health, the law provides for it to happen.
Common Law – Trespass
The Law on Trespass, which has been derived from Common Law, entitles owners* of premises to:
- Refuse entry to the premises
- Section-off parts of a building or grounds as “restricted to authorised staff only”
- At any time, withdraw permission to remain on the premises
* Owner means the actual owner and their authorised agents (e.g. Manager, Security Officers.)
A person who is on premises without the permission of the premises owner is a trespasser. If a person refuses to leave when asked to do so, they become a trespasser.
On its own, (i.e. without criminal intent), trespassing on property is simply a civil wrong, not a criminal offence, so there is no power to arrest. However, the Law on Trespass does authorise the use of reasonably necessary physical force to:
- Prevent a person from coming onto the premises.
- Remove any trespasser who refuses to leave after being asked to do so.
- Prevent re-entry.
Sections 119 and 120 of the Criminal Justice and Immigration Act 2008
Section 119 of the Criminal Justice and Immigration Act 2008 (‘CJIA 2008’) created a new criminal offence of causing a nuisance or disturbance on NHS premises.
A person commits this offence if –
- the person causes, without reasonable excuse and while on NHS premises, a nuisance or disturbance to an NHS staff member who is working there or is otherwise there in connection with work,
- the person refuses, without reasonable excuse, to leave the NHS premises when asked to do so by a constable or an NHS staff member, and
- the person is not on the NHS premises for the purpose of obtaining medical advice, treatment or care for himself or herself.
Section 120 CJIA 2008 provides Police and ‘authorised’ members of NHS staff (including security Officers) with the legal authority to physically remove a person suspected of committing an offence under s.119 CJIA 2008, if they refuse to leave when asked to do so.
Note: Patients or those seeking medical advice, treatment or care cannot commit the offence or be removed from NHS premises under CJIA 2008 powers. However, a person ceases to be on NHS premises for the purpose of obtaining medical advice, treatment or care for himself or herself once the person has received the advice, treatment or care, or if they have been refused the advice, treatment or care during the previous 8 hours.
What is nuisance or disturbance behaviour?
Nuisance or disturbance behaviour is not defined in the CJIA 2008. So, it can be any kind of behaviour on NHS premises that causes a nuisance or disturbance to an NHS staff member who is working there or, is otherwise there in connection with work (including Security Officers).
The lack of an explicit definition of nuisance or disturbance behaviour in the CJIA 2008 is not an accident. The legislators deliberately did not specify the full range of behaviours that would constitute nuisance and disturbance behaviour, so as to enable NHS Staff to have flexibility of interpretation to apply to individual circumstances.
Empowers NHS Staff to take immediate action
Where there is no satisfactory response to attempts to modify the behaviour of a person causing a nuisance or disturbance, it might be necessary to remove the individual from the hospital grounds as a last resort.
Significantly, the provisions of the CJIA 2008 mean that NHS Staff (and Security Officers) do not necessarily have to wait for the arrival of Police before taking action to remove someone who causing a nuisance or disturbance from the premises.
For instance, if –
- A person is refusing to leave after being discharged and persistently arguing with staff because they think they haven’t been treated properly.
- A person causing a scene because they think the patient that they’re accompanying is being not being treated the way they should be.
Entitles NHS Staff to legitimately call for Police
Certain situations may be beyond the capability of Security Staff on their own to safely restore order, without the support of the Police.
For example, a large group of individuals attending the hospital to visit a patient. They totally ignore the parking regulations and park wherever they want. They also ignore the ward visiting times and other conditions (e.g. number of visitors per patient). They also ignore ‘no smoking’ signs, talk very loudly, block the corridors and generally create a lot of noise, mess and disturbance.
Ordinarily, Police will not attend a scene urgently unless a crime is either in progress or a crime has been committed and the suspect is still in the vicinity.
However, if nuisance and disturbance behaviour is occurring on NHS Premises, it could amount to a criminal offence, in which case Police would have a duty to respond. This means NHS Staff can legitimately call for Police support to deal with nuisance or disturbance behaviour that anywhere else would not meet the threshold of being a criminal offence.
An effective deterrent
A person who commits an offence under section 119 of the Criminal Justice and Immigration Act 2008 is liable on summary conviction to a fine not exceeding level 3 on the standard scale (i.e. £1000) and a criminal record.
Whilst the threat of prosecution and conviction will not deter everyone from engaging in nuisance or disturbance behaviour, it is a significant deterrent that most reasonable people would respect.
Not many people are actually aware of the existence of the CJIA legislation and upon being informed they are committing a criminal offence the vast majority will quickly moderate their behaviour and comply with requests.
Raising staff and public awareness
NHS bodies should ensure staff and the public are aware of the offence of causing a nuisance or disturbance to an NHS staff member on NHS premises and of the power that NHS staff have to remove people suspected of committing this offence.
This can be done through patient information leaflets, as well as, on trust websites.
Posters explaining the CJIA powers to staff and members of the public should be displayed in all public areas.
The example poster depicted below incorporates a QR Code that can be scanned using a smart mobile phone to connect directly to the s.119/120 CJIA 2008 legislation on a Government website. This enables Service Users to quickly and independently verify the veracity of the claims made on the poster, helping to quickly resolve any misunderstandings.
A safer framework for removals
Many NHS Trusts operate ‘removals’ under the law on Trespass. However, the law on Trespass doesn’t specify the training that should be given to Security Officers who may be called to remove a person from NHS premises, neither does it advise on a process or a procedure to be followed to ensure someone who has a need for medical advice, treatment or care is not forcibly removed from NHS Premises.
A lack of appropriate training and a recognised procedure to follow will obviously increase the risk of a mistake being made, potentially with serious consequences.
Whereas the provisions of sections 119 and 120 of the CJIA 2008 were drafted specifically for use in NHS hospitals and they include safeguards designed to protect against anyone who has a need for medical advice, treatment or care being forcibly removed from NHS Premises.
These safeguards are embedded into the training that ‘authorised officers’ should receive, along with a decision-making model to follow when determining whether there is reason to believe that a person requires medical advice, treatment or care, or that removal would endanger the person’s physical or mental health.
Ideally, the same ‘safeguards’ should be in place for any removals, whether carried out under the Law on Trespass or the Provisions of s120 CJIA 2008.
Nobody should be forcibly removed from NHS Premises unless a suitably qualified NHS Staff member has assessed them as ‘fit to be removed from the premises’.
A Coroner’s recommendation
Following, the death of Liam Gatrell, 29, a drug addict, who was found dead outside Northwick Park Hospital, having earlier been ejected from the A&E department, the Coroner, Dr William Dolman said:
“I will be making a recommendation to Northwick Park Hospital authorities along the lines that patients should not be removed from the accident and emergency department unless they have been assessed by medical staff, or unless to do so would be unreasonable, including the question of consent and danger to personnel.”
Note: The absence of a national NHS security authority (like the former NHS Protect) to disseminate the information makes it likely that Northwick Park Hospital could be the only hospital currently aware of the Coroner’s statement.
A need for ‘protective protocols’
It stands to reason that Security Officers should not be permitted to ever exercise sole responsibility (autonomy) for deciding whether or not anyone is fit to be removed from NHS premises. This includes vagrants (homeless people), for example, loitering and begging, dossing in lavatories or restaurant areas, taking and drinking hand sanitiser gel and difficulties with refusals to leave following being discharged after medical treatment.
Homeless people are recognised as a ‘vulnerable group’ and, in the event of an adverse outcome following expulsion from NHS premises, the subsequent investigation will inevitably examine the processes and procedures that should reasonably be in place to protect against predictable and avoidable harm happening, as well as, the instructions, training and level of supervision given to the Security Officers. An absence of suitable ‘protective protocols can mean liability (and culpability) is easily and quickly established, on the basis of ‘res ipsa loquitor’ – the facts speak for themselves.
So, whether NHS Security Mangers want to embrace the provisions of the CJIA 2008 or, are content to remain relying on the Law on Trespass, now would be a good time to review the Standard Operating Procedures for ‘removals’ at their NHS Trust and ensure they align with what Coroner, Dr William Dolman said.
A useful ‘additional’ tool
The provisions of section 119 and 120 of the CJIA 2008 certainly appear to be a useful ‘tool’ for managing low level, nuisance and disorder behaviour that all NHS Staff should be aware of and be able to invoke.
One of the biggest benefits is that it empowers NHS Staff with the ‘power of persuasion’. It is easy to imagine how a person’s behaviour would change once they find out what they are doing could get them a fine of up to £1,000 and a criminal record! The Security Officers at the Whittington Hospital who took part in the original trials certainly testified to this useful ‘behaviour change’ effect.
Whilst the section 120 provisions may be expected to be utilised fairly frequently at some NHS Trusts, it is envisaged that prosecuting a person for committing an offence under Section 119 CJIA 2008 would be an exceptional event.
The CJIA 2008 provisions should not be regarded as a hammer to be used by NHS Staff to ‘stamp out’ low level, nuisance or disturbance behaviour, but instead as a useful ‘additional’ tool in the Conflict Resolution Training ‘tool-kit’, one that in certain locations could prove invaluable.
Implementing the CJIA provisions is also reasonably straightforward and inexpensive.
NHS Security Managers wishing to make the CJIA 2008 provisions available to be used at their NHS Trust should be aware that section 121 of the CJIA 2008, requires English NHS bodies to, when exercising functions under, or in connection with, section 120, have regard to guidance about the powers, published by the Secretary of State (and for Welsh NHS bodies, guidance published by the Welsh Ministers.)
The Guidance provided for English NHS Trusts:
- NHS Protect – Guidance on provisions to deal with nuisance or disturbance behaviour on NHS premises in England (2012)
- NHS Protect – Criminal Justice and Immigration Act 2008 (S119-120) programme Final report (2012)
The first step would be to establish a policy and procedures to govern the way the CJIA 2008 powers are to be utilised, recorded and monitored at the NHS Trust.
The next step is to design a decision-making flowchart for Authorised Officers to be able to reference and a template reporting form that facilitates and simplifies the recording of all necessary information for reporting CJIA incidents.
Next would be to identify and appoint a sufficient number of ‘Authorised Officers’ to provide continuous (24/7/365) availability. Authorised Officers should be someone in a managerial position in the Trust who has decision making responsibility attached to their current job description. Decision making responsibility can cover decisions relating to a person’s health or decisions relating to the operations or running of the NHS body in which they work. An Authorised Officer could be a clinician, or an NHS manager and suitable roles may be, but are not limited to:
- Charge Nurse or Sister
- Senior Nurse/Matron
- Duty Site or Bed Manager
- Senior Midwife
- Registrar/Consultant Doctor
- Operations manager
- Clinical site manager
- Security Manager
The next step after that would be to select and train the appointed ‘Authorised Officers’ and Security Officers (as Appropriate Officers) to be able to work together as a team when the need arises to exercise the CJIA powers. Once the training has been carried out, the next phase would be to commence a campaign to promote general awareness of the CJIA offence and power of removal.
Posters and leaflets explaining the CJIA powers to members of the public should be displayed prominently in all areas where it would be helpful. The same information should be included in any leaflets accompanying staff appointment letters, as well as on the Trust website.
It would also, of course, be good practice to inform the local Police, Crown Prosecution Service and neighbouring healthcare service providers, including Ambulance Trusts of the initiative.
That’s about it.