Wrongful Exclusions in the NHS
We would all hope that if we have cause to restrain a patient we would instinctively use an appropriate and proportionate technique out of therapeutic necessity, to protect others or to protect the patient themself from coming to harm. Many employers will train their employees in techniques of restraint, but not all do. Either way, it is not always possible to react with precision. Doctors on occasions may have to restrain a patient and it will not always be possible to apply the exact technique that has been approved. In some instances, a doctor may make an error about the approach that should be adopted or that has been approved. Where that happens an employer may feel that they are in a difficult position in that they consider that an assault may have occurred which needs police involvement. However, depending on the circumstances, it must be doubtful that it is appropriate to always involve the police, just to be on the safe side and in order to protect the interests and the reputation of the employer. Heavy-handed management practices may actually lead to staff failing to act appropriately out of fear that their actions will be misconstrued, in turn putting staff and patients at unneccessary risk of harm.
The Court of Appeal has given guidance to employers on when it is appropriate and not appropriate to involve the police (as well as giving observations on decisions to exclude). While the case itself does not clearly set out what may and may not need to be referred to the police (or what allegations should lead to exclusion), the guidance will be welcomed by doctors who may feel that they are risk of police involvement, or unnecessary exclusion where they get things wrong.
Ideally all staff members should be trained in techniques of restraint and about the Mental Health Acts and the Capacity Act, and when a healthcare practitioner may act in the best interests of a patient. But even where staff members are highly trained and skilled, there may well still be occasions where things go wrong, while acting in good faith. Case law requires that decision-makers who are tasked with investigating allegations of poor conduct are properly trained to arrive at proportionate decisions.
In A Crawford and Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 – the Court of Appeal commented (obiter) that in the case before them the police should not have been involved at all. There had been an obvious justification for restraining a patient. Regrettably, the nurses involved had gone about the restraint in the wrong manner; yet they had at all times acted in good faith. The Court of Appeal was clear in its view that employees required respect and that management should not call in the police just to protect their position. [View Employment Law Report (External Link)] (February 2012). At para 73, Elias LJ opined, obiter:
“I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.”
It was common ground between the nurses that a chair, in which an elderly male patient had sat, had been tied to a table. However, there was some( evidentially-relevant) disagreement about the further unapproved techniques that may have been used (namely the use of a sheet having been tied around the patient to the chair). The police had been called in by the employer to investigate an assault, as a consequence of the allegations. The police took no action against the nurses involved.
The comments of the Appeal Court judge are helpful in clarifying how an employer should approach allegations of poor conduct by staff without involving the police at all. This case in turn provides strong support for doctors who might also get things wrong – that they should be disciplined locally (if at all) and not reported to the police in many instances. There will continue to be cases where employers properly report their concerns to the police, but hopefully this case will lead to a reduction in the number of cases being referred where a doctor has acted in good faith and their act or omission was not of such an abusive nature that it could be defined as being potentially “criminal conduct”.
Exclusion
The same judge went on to say the following, in a footnote to the judgment (relating to the decision to exclude (suspend)):
” Footnote.
71. This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend [exclude] the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703,[see para 58, 59 of the linked Bailii report] even where there is evidence supporting an investigation, that does not mean that suspension [exclusion] is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.
72. I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.
73. However, whatever the justification for the suspension, I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.”
Such words are relevant when a Trust considers suspending a doctor. Is it really necessary?
See our MHPS and Exclusion Case Law page for more information.
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