The case of the nurses and the elderly man: does JE stand for judicial empathy?

The case in the Court of Appeal of two nurses dismissed for their role in the unlawful restraint of a patient with dementia seems an interesting case study in judicial empathy. Its citation is Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138 (17 February 2012), but I’m going to call it the case of JE. Although he’s not a party to the case, he is the person it’s all about, after all.

At the least, there was palpable sympathy from the court for the nurses. And very useful judicial commentary for any professional who faces routine suspension and isolation during a slow disciplinary investigation.

Try out empathy for the nurses yourself. Here’s the crude facts:

  • You are one of 2 nurses on night duty on an admission and assessment ward primarily for people with depression, anxiety or dementia;
  • On this particular night, one of the patients, JE “was 87 and suffered from dementia. On the day in question he had been agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention. It was noted that the safe handling technique used by the staff on the previous shift had caused skin tears on his arms to be opened. Medication had to be administered forcibly because he was refusing both food and medicine”;
  • You have a duty of care to all the patents, and are aware that on the previous day, JE required 2:1 attention, with the effect that “the other patients had only their basic needs attended to”;
  • You constrain JE by tying his chair to the table with a sheet. Exactly how, and whether it involved tying JE himself, is unclear;
  • In consequence you are suspended, and forbidden all contact with colleagues;
  • The incident is reported to the Police;
  • Eventually, following a disciplinary, you are dismissed, and inevitably your regulator is aware of this.

So, do you feel hard done by? Really, your employer just hadn’t provided enough staff to manage the situation in accordance with best practice, and some sort of hack was going to be necessary. What you did – or possibly, what you failed to record or prevent – wasn’t noticeably worse than the injuries the day staff caused to JE’s arms, and the forcible administration of medication, both of which are also technically assaults. Inevitably, best practice care for him would have been to the detriment of all the other patients. And after an incident-free career, it feels over the top to face immediate suspension with no contact with colleagues. Is it really right that you whole career should be at risk?

The Court of Appeal got all of this, and went out of their way – really, bending over backwards – to criticize the nurses treatment.

First, the footnote

The footnote is frankly the best bit of the judgement. A shame it is what lawyers would term an obiter dictum – unnecessary to the decision, therefore not binding on anyone else. The judges noted what in my experience of such cases is true, that this immediate suspension with no contact is common practice, but, they said, it is not good employment practice:

“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… 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.” [paragraph 71]

The footnote is even more scathing about the referral to the Police:

“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.” [paragraph 73]

This approach to criminality is fascinating. There was an assault. And in my assessment it is hardly beyond the bounds of probability there was a crime. But the judges do not say there was no crime. They apply a different test, whether the conduct justifies the epithet ‘criminal’ being applied to it. One gets the impression the court is mindful that the criminal law is there to sanction the most egrerious breaches of society’s minimum standards, and feels that regulated professionals who fall short of best practice standards are properly dealt with in a different arena than the criminal courts. Moreover, employers of professionals should be making the judgement about the appropriate arena for themselves.

Second, the speculation

Yes, I’ve gone for alliteration.

The court imagines for itself how the nurses must feel:

“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… 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.”

The court also speculates on the long term consequences:

“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.”

Third, the theorising

The third way the court bent over backwards was in its reasoning to its conclusion. The structure of employment law in the area of unfair dismissal is unhelpful to us professionals, in that the appeal process does not consider whether the decision could or should have been different, only whether it was within the range of reasonable responses based on honestly held reasonable belief – see paragraph 25.

Given how low the threshold for what the employer needed to show, it required quite tortuous reasoning for the Court of Appeal to swap the outcome again and declare the dismissal unfair. But the court managed it.

But what about JE?

However useful the judicial comment on the treatment of professionals by employers – and I truly welcome its comments, as the standard ‘act first, reflect later’ practice of risk-averse employers can treat professionals quite abominably – the elephant in the room so far as judicial empathy is concerned is the patient concerned, JE.

I see no evidence that the court tried to put itself into JE’s situation. It observed that the medics were

“sanguine about it. It appeared to cause them little concern; [the Ward Manager] noted that they were not “shocked, angry or even mildly emotional about the allegation”. She felt that they were not treating the incident seriously enough.” [paragraph 7]

The court, frankly, seems equally sanguine.

“…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…” [paragraph 73]

But I find it hard to be so sanguine. JE was male, aggressive, 87 and suffering with dementia, but a human being nonetheless. None of these characteristics could, of themselves, have provided the justification for his treatment. And I really do wonder whether the reaction would have been the same had he been a passive young woman with a physical disability, rather than an aggressive old man with dementia?

JE maybe does not stand for judicial empathy after all?

Allan Norman is a registered social worker and a solicitor at Celtic Knot.