Do we really need a law telling people not to assault NHS staff?

Today’s PMQs offered a public airing to a campaign which struck a chord with me, but which may have been overlooked by others amidst the farce of Jeremy Corbyn mistakenly offering “condolences” to the family of a dead police officer who was in fact very much alive and trying to excruciatingly dissemble his way out of his error. The campaign in question was mentioned by Oliver Dowden MP, and seeks to offer protection to NHS workers at risk of violence from patients.

 

Oliver Dowden’s call to make NHS attacks a specific offence: “Public will not tolerate violence towards our hard-working members of the NHS” pic.twitter.com/za3dFxePhR

— DailySunday Politics (@daily_politics) January 25, 2017

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Although not explicitly stated, it appears that Mr Dowden is linking arms with a petition, currently running at over 110,000 signatures, which calls for Parliament to create a specific criminal offence of assaulting any member of NHS medical staff. The creator of the petition is Nick Ferrari, the LBC radio host, who demonstrated his grasp of sensitive and complex legal matters when he last month waded straight into the brouhaha over Marine A being refused bail without bothering to acquaint himself with the basics, echoing the lament of the ignorant – “Our courts grant bail to paedos but not to war heroes” – over his airwaves. [For an explainer of this affair, see here.] But the petition still deserves a fair hearing, as indeed it will get in Parliament now that it has hit the 100,000 mark. Its premise and purpose are to the point:

“There are 193 attacks on NHS staff a day in England. LBC’s Nick Ferrari thinks this is unacceptable. Support his ‘Guard Our Emergency Medical Services’ campaign to better protect our doctors and nurses by making it a specific legal offence to attack them.

Figures show that attacks on NHS staff are rising. With stretched resources, higher demand and rising waiting times the NHS can ill afford this violence.

For twenty years it has been a specific offence to attack a Police officer conducting their duties. (Section 89(1) of the Police Act 1996).

We the undersigned believe it is time to extend this higher legal provision and protection to NHS medical staff and make it a specific offence to assault them.”

The methodology behind his numbers is not clear, but if we accept for now the premise that attacks on NHS workers are rising, is a new law criminalising this particularly despicable type of violence – giving doctors and nurses the same protection that we offer to police officers – not a self-evidently good thing? Should the cries from the British Medical Association and Royal College of Nursing not be acted upon? Particularly when, as Mr Dowden pointed out to the House today, specific laws also exist to criminalise assaults on prison officers and immigration officers?

I’m afraid not.

For a start, extending section 89(1) of the Police Act 1996 as the petition demands (and as is achieved in the case of prison officers by s.8 of the Prison Act 1952), would have next to no practical effect. Because the offence of assaulting a police officer presently has next to no practical effect. The maximum sentence for assaulting a police constable under s.89 (or a prison or immigration officer) is six months’ imprisonment, which is the same maximum sentence that a court can impose for common assault or battery under s.39 Criminal Justice Act 1988, the Act under which less serious assaults against NHS workers – indeed, against anyone – are currently charged. More serious assaults causing injury, whomever they are against, will be charged as assault occasioning actual bodily harm or inflicting grievous bodily harm, which carry significantly higher maximum sentences.

Furthermore, under the Sentencing Guidelines which courts are required to follow, if an offence of assault was committed “against those working in the public sector or providing a service to the public”, the court must already treat that as an aggravating factor when arriving at the sentence.

It is difficult to see therefore how what the petition seeks would in any way offer the “higher legal protection” sought, assuming that by “higher legal protection” Ferrari means “tougher sentences”. It would create a new shiny offence with an exciting new name, that would tie up Parliamentary time and add yet further pages to our diarrhoeaic criminal law, but would not result in a jot of practical difference when it came to sentencing these crimes. Unless Ferrari envisages a higher maximum sentence for this new offence, in which case we can look forward to the immediate uproar from police officers wanting to know why someone punching them in the groin can only get 6 months while someone performing the same manoeuvre on a dentist can get up to a year.

Which leads us to the broader problem with laws of this type – What About Me? If NHS medical staff are to be regarded as comprising a vulnerable, public-facing group against whom an offence is ipso facto more serious, no doubt other interests would wish to be considered. Teachers, for instance. Or firefighters. MPs have a pretty good claim. The Armed Services have been pushing for such a law for some time. Bus drivers are common targets of unhinged violence. Court staff put themselves face-to-face with the very worst people in society on a daily basis. So in fact do we lawyers. And our staff. All of us are performing a public service. All of us deserve protection. Can we have a law named after us too?

The greatest objection though is that this approach just does not work. The petition plays to the legislator’s fallacy, beloved of those like Ferrari who think that the panacea to the social maladie du jour is just one law away. If we say X is an offence, and the punishment sounds tough enough, X will stop. Reality does not bear this out. The fact is that the people we see in court every day who roll into A&E smashed and abusive, spitting at nurses and headbutting doctors, are not going to be deterred by the knowledge that Ferrari’s Law means they might now be charged with Assaulting a NHS Worker instead of common assault. The problems isn’t that there’s not a law to prohibit what they’re doing. It’s that law alone is not enough. Simply adding further legislation to existing legislation in the hope that enough reams of the stuff will somehow resolve deeply embedded social, cultural and behavioural problems is the theory of the madhouse.

I appreciate from first hand experience that medical staff risk their personal safety daily in what are usually intolerable and at times highly dangerous conditions, and my scepticism for this initiative should not be read as a lack of sympathy. If there were a practical law that could achieve the desired result of fewer assaults on medical staff, I would mount my hobby horse and back it to the highlands. But this petition’s promise of “higher protection” bestowed by a special, targeted offence is a chimera. Well-intentioned, no doubt. But wrong.

If I were a shock jock riffing on an ill-thought out prescription for an immediately better society, I’d speculate that the solution lies somewhere between spending more money on staff, decreasing the time that these violent thugs can spend winding themselves up in the waiting area, spending more money on mental health services so that those offenders are properly diverted, and spending more money on security at hospitals. But I’ll settle for saying, more authoritatively, that whatever the answer may be, Ferrari’s Law isn’t it.