Abuse and assaults on nursing staff are increasing year on year, with the latest Royal College of Nursing (RCN) Employment Survey highlighting that some 27% of respondents reported being physically abused by patients or relatives in the preceding year and some 68% reported verbal abuse from patients and relatives (Marangozov et al, 2018).
The RCN has long campaigned for tougher sentences for those who are violent towards nurses and was eventually successful in persuading parliament to extend the definition of ‘emergency worker’ in the Assaults on Emergency Workers (Offences) Bill to include all NHS nurses and support workers, not just those working in emergency departments.
The principles underpinning the 2018 Act and set out by the government argue that:
‘An assault on any individual or citizen in our society is a terrible thing, but an assault on an emergency worker is an assault on us all. These people are our constituted representatives. They protect society and deliver services on our behalf. Therefore, an attack on them is an attack on us and on the state, and it should be punished more severely than an attack simply on an individual victim.’
Assault and battery
An assault occurs where the perpetrator intentionally or recklessly causes the victim to expect the immediate use of unlawful force on them. This can include written and spoken threats (R v Constanza [1997]), staring (R v Ireland and Burstow [1998]) and spitting (R v Misalati [2017]).
A battery occurs where the perpetrator intentionally or recklessly applies unlawful force to another such as punching, slapping, kicking, holding or the use of a weapon (Collins v Wilcock [1984]).
No harm need result from the unlawful use of force, but a guideline from the Crown Prosecution Service recommends that battery is the appropriate charge where there is minor harm such as grazes, scratches, abrasions, minor bruising, swelling, reddening of the skin, superficial cuts or a black eye (Crown Prosecution Service, 2018a).
Assaults on Emergency Workers (Offences) Act 2018
The Assaults on Emergency Workers (Offences) Act 2018 came into force in November of that year. The Act creates a specific offence of common assault or battery against a nurse who provides NHS care or other emergency workers who are exercising the functions of such a worker (section 1(1)). Police and prosecutors now charge under the provisions of the 2018 Act where the complainant is a nurse.
Where common assault or battery is committed against a nurse or other emergency worker the maximum sentence is now double those imposed for common assault against a member of the public—which, under the provisions of the Criminal Justice Act 1988, section 39, stands at 6 months' imprisonment. The Assaults on Emergency Workers (Offences) Act 2018, section 1(2) provides for a maximum sentence of 12 months' imprisonment and/or an unlimited fine when the perpetrator is found guilty either in a magistrate's court or a crown court.
Emergency workers
For the offence under section 1(2) of the 2018 Act to be charged, the victim must be an emergency worker. Section 3(1) of the Act defines an emergency worker as in Box 1.
Nurses and other health workers are covered by point (j) in the list if they are providing or engaged in or supporting NHS health services. For the purpose of the definition is does not matter if the employment or engagement is paid or unpaid (section 3(2)).
Acting in the exercise of functions as an emergency worker
For the aggravated version of common assault and battery against an emergency worker to be charged, the victim has to have been acting or functioning as an emergency worker at the time of the offence. The Assaults on Emergency Workers (Offences) Act 2018 does not define acting in the exercise of functions as an emergency worker so it will be necessary for the police and prosecutors to identify and nurses to provide evidence of what they were doing at the time they were assaulted to demonstrate to the court that is element of the offence is satisfied.
Aggravating factor for more serious offences
As well as creating a discrete offence of assault and battery against an emergency worker the Assaults on Emergency Workers (Offences) Act 2018, section 2 also creates statutory aggravating factors for more serious offences committed against nurses and other emergency workers. Courts must consider the offending to be more serious when committed against a nurse and that it merits an increase in the sentence. The court must say in open court that committing the offence against a nurse or other emergency worker was an aggravating factor when sentencing the perpetrator (Crown Prosecution Service 2018b)
This statutory aggravating factor applies to:
The Courts also have the discretion to treat other offences against a nurse or other emergency worker as an aggravating factor even though the offence is not specifically mentioned in section 2 of the 2018 Act.
Assault on a nurse
A man who assaulted a nurse who was trying to provide care to another patient pleaded guilty to three counts of common assault against an emergency worker under section 1 of the 2018 Act. The man had been drinking with a relative, but was admitted to the emergency department after falling when drunk and sustaining a cut to the head. After examination and treatment, he was thought to be sleeping off his intoxication when he assaulted the nurse by grabbing her wrists and pushing her by the shoulders before punching and then kicking hospital security officers.
He was sentenced to a night-time curfew from 7 pm to 7 am for 8 weeks, a 12-month community order and ordered to pay £150 compensation to each of his victims by magistrates (Hull University Teaching Hospitals NHS Trust, 2019).
Assaults continue to rise
Despite the creation of a specific criminal offence and statutory aggravating factors for more serious offences, initial figures show that the 2018 Act has had little impact as a deterrent against assaults on emergency workers, including nurses. Some 4000 assaults against emergency workers were reported in the 6 months following the introduction of the Act and tougher sentencing alone will not deter patients from assaulting nurses (Martin and Camber, 2019).
Conclusion
The Assaults on Emergency Workers (Offences) Act 2018 has created a specific aggravated offence of common assault and battery when committed against a nurse or other emergency worker exercising their duties. The offence carries a maximum sentence of up to 12 months in prison and/or an unlimited fine. The 2018 Act also creates statutory aggravating factors for a range of more serious offences committed against nurses and other emergency workers. However, despite the tougher sentencing, the Assaults on Emergency Workers (Offences) Act 2018 does not appear to have deterred patients and other from assaulting emergency workers, given the number of offences reported in the 6 months following the Act's introduction.