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Violent patients

Andrew Parsons asks: does staff safety trump patient care?

24 February 2006

It is an inescapable fact for those providing mental health care that on occasions psychiatric patients may be violent. One response to this may be to use seclusion of the patient to prevent him/her having contact with others for a defined period. Although controversial, it remains a tool available to mental health professionals.

The House of Lords considered seclusion and found its use at Ashworth Hospital was not unlawful – see R v Ashworth Hospital Authority ex p Munjaz [2005] UKHL 58.

The main impact of the House of Lords’ judgment in Munjaz addresses the use of seclusion and in particular the status of the Code of Practice to the Mental Health Act. However, the dicta (particularly that of Lord Scott) refer to another perennial problem in mental health services, namely the extent to which a hospital has a common law duty to provide protection from violent patients. Lord Scott suggested (at para 103) that a hospital has a legal duty to protect others from a patient who might harm them. He went on to state that that duty might be fulfilled by placing the patient in seclusion.

It is beyond the ambit of this article to consider the legal liability of hospital authorities for patients once discharged into the community. The courts have previously struggled with this – see Clunis v Camden & Islington Health Authority [1998] 3 All ER 180, Palmer v Tees Health Authority [1998] All ER 180.

However, Lord Scott did raise the question of the responsibility of hospital authorities to protect staff and other patients from violent psychiatric patients. The courts have considered this before. In R v Broadmoor Special Hospital Authority ex p SH & D [1998] COD 199, Auld LJ indicates that, where patients have been sectioned either under s 3 or s 37 of the Act, the safety of staff and visitors will, in circumstances that require it, override the “individual therapeutic requirements of an individual patient”. Laud LJ noted that:

“The responsibility for the safe detention of each individual patient and the collective security of the hospital itself is a problem for the management rather than the individual medical officer. These considerations fall within the concept of control and discipline identified by Lord Edmund Davies in Pountney v Griffiths [1976] 2 All ER 881 which in my judgment remains undiminished by the amendments to the Mental Health Act 1959 enacted by the 1983 Act.”

R v Bracknell Justice, ex p Griffiths [1976] AC 314 gives further authority for restraining powers to be used as a part of effective treatment. Widgery CJ stated:

“There can, however, in my judgment be no doubt that the concept of detention and treatment necessarily implies that the staff at the hospital, including the male nurses, can and on occasions must use reasonable force in order to ensure that control is exercised over the patients.”

It is clear that the common law recognises that reasonable force can, and on occasions should, be used to maintain safety, and provide necessary treatment to the patient. The safety of the staff, patients and visitors is a responsibility to be borne by hospital management.

It is the balance between security/safety and the provision of treatment that often causes the greatest difficulty in practice. Newman J in R (N) v Ashworth Special Hospital Authority [2001] EWHC Admin 339 stated that:

“In my judgment, the considerations of treatment and security are almost inextricably connected. The provision of treatment is dependent upon adequate security and since the law requires a balance to be achieved, short of material demonstrating that a particular adverse therapeutic consequence had been ignored, the challenge faces insuperable difficulties.”

Laud LJ in SH &D commented similarly when he noted that, although security objectives may precede treatment objectives:

“That is not because security objectives ‘trump’ treatment objectives, but because security is a necessary part of the background to treatment.”

It would seem then, that overall security should and does take precedent over the treatment of the patient, for without a safe environment for the staff, patients and visitors, the individual patient concerned cannot effectively be treated. Indeed, Laud LJ concludes his judgment with the following statement:

“In my view, it is very plain common sense that, on occasion, an individual patient’s treatment may have to give way to the wider interest. Any outcome which permitted individual doctors, acting only in what they perceived to be the therapeutic needs of their respective patients, to exclude them from application of the policy [of random body searches] would be a recipe for chaos and could endanger the safe environment necessary for the treatment of all patients and the safety of staff and visitors.”

Although that statement was made in relation to the introduction of random body searches of patients, the underlying principle seems to be that safety/security should and does take precedence over treatment. This is not to say that, under the common law, the duty to treat the patient is discarded, far from it. The duty to create a safe working environment seems to ensure that as far as possible the duty to treat is effectively pursued.

Indeed, notwithstanding the approach of the common law, the Health & Safety at Work Act 1974 (HSWA) has been used on several occasions to enable the HSE to take action against mental health providers who have not taken the necessary steps to protect their staff.

Section 2 of the HSWA imposes on employers a duty to ensure (so far as reasonably practical) the health, safety and welfare at work of its employees. Section 3 of that Act provides an additional duty on an employer to conduct its undertaking in such a way so as to ensure (so far as is reasonably practicable) that persons not in that employment who may be affected are not exposed to health and safety risks.

The combination of these sections has enabled the HSE to take action against mental providers who have not taken appropriate steps to protect their staff, patients and (potentially) visitors.

There are clear legislative obligations to ensure safety. Safety may on occasions be achieved via the use of force, but if that cannot be achieved safely, in the final analysis, staff safety does appear to ‘trump’ patient care.

Andrew Parsons is a partner at RadcliffesLeBrasseur

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