Originally published in April 2003
RadcliffesLeBrasseur is regularly asked to advise on the legal remedies available to ensure, as far as possible, that patients who have demonstrated or threatened violence do not return to the premises of the healthcare provider and put staff at further risk. Enquiries are often raised as to whether a patient can be prevented by Court Orders from entering not only a hospital or GP premises, but also a wider area around the premises. Such remedies are available both under the Protection from Harassment Act 1997 and the general jurisdiction of the Courts under the common law.
What constitutes harassment?
The Protection from Harassment Act 1997 makes it an offence for a person to pursue a course of conduct ‘which amounts to harassment of another ’.In order to catch a wide variety of conduct, the Act intentionally does not define the term ‘harassment ’.
A breach of the legislation occurs when the person responsible for the course of conduct knows, or ought to know, that the conduct amounts to harassment of the other person. It is therefore not a defence for a person to claim, for example, that due to his mental state he was not aware that the conduct amounted to harassment.
In addition, the legislation makes it an offence for a person to conduct himself in a way that ‘causes another to fear, on at least two occasions, that violence will be used against him ’if the person responsible for that conduct knows or ought to know that his course of conduct would cause the other person to be in fear on those occasions.
What Orders can the Courts make?
Where a criminal Court finds a person guilty of an offence under the 1997 Act, it can make a Restraining Order prohibiting the person found liable of the offence from further conduct which amounts to harassment or will cause fear of violence, in order to protect the victim of the offence.
Such an Order, which might include a provision restraining the person guilty of the offence from entering a certain area, may have effect for a specified period or until the Court makes a further Order. If the accused breaches the terms of the Order, this in itself constitutes a criminal offence.
Which legal route is available?
A limitation of the Protection from Harassment Act is that it contemplates that the person who is involved in the harassing behaviour directs his actions towards specified individuals. Where a patient threatens or acts violently towards staff in a hospital or a GP practice, his behaviour may not be focused upon any specific individual but be of a more general nature. In these circumstances, if an injunction is to be obtained excluding the patient from the relevant premises an injunction will have to be sought via the common law.
If a healthcare provider is faced with a patient whose behaviour may give grounds for considering such legal proceedings, it is advisable that accurate records are kept of any such incident, together with details of the individual involved so that, if necessary, witness evidence can be sought for the purpose of a court application.
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