Clause 104

Criminal Justice and Immigration Bill – in a Public Bill Committee am 7:45 pm ar 27 Tachwedd 2007.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Offence of causing nuisance or disturbance on NHS premises

Photo of David Heath David Heath Shadow Leader of the House of Commons

I beg to move amendment No. 337, in clause 104, page 70, line 14, at end insert ‘and’.

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

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.

Photo of David Heath David Heath Shadow Leader of the House of Commons

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.

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.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 8:00, 27 Tachwedd 2007

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.”

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

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.”

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

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

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

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.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 8:15, 27 Tachwedd 2007

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.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

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. Heath rose—

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction)

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.

Photo of David Heath David Heath Shadow Leader of the House of Commons

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.

Photo of Edward O'Hara Edward O'Hara Llafur, Knowsley South

Order. We are not straying onto the grounds of the next clause yet, I hope.

Photo of David Heath David Heath Shadow Leader of the House of Commons

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—

Photo of David Heath David Heath Shadow Leader of the House of Commons

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.

Photo of Vernon Coaker Vernon Coaker Parliamentary Under-Secretary (Home Office) (Crime Reduction) 8:30, 27 Tachwedd 2007

I said to the hon. Gentleman that I will reflect on what he has said.

Photo of David Heath David Heath Shadow Leader of the House of Commons

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.