"Protecting" doctors (allegedly)

On the 30th August, Dr Helen Jackson, a GP, was stabbed at work in her Glasgow surgery. In a radio interview the next morning the Minister for Public Health, Shona Robison, committed to extending the Emergency Workers (Scotland) Act 2005 to cover GPs and other primary health care staff. She said:

“Primary care staff in particular I have always argued were the key group of staff which should have always be included in that legislation because they work in the community often in relative isolation with not many people around and about them and they were always more vulnerable. It is just unfortunate that those calls weren't heeded when the legislation was going through, but we intend to make that right now, as quickly as we can.”

And Ms Robison has now gone one step further towards doing just that, announcing yesterday that a statutory instrument will be made - as permitted under section 8 of the 2005 Act - to extend it to “doctors, nurses and midwives whenever and wherever they are on duty”.

What does the 2005 Act do? It creates various offences of assaulting or impeding emergency workers. Of course, assaulting anyone is a criminal offence, but significantly, the Act allowed sheriffs to hand out stiffer sentences in summary procedure than they could normally do in such cases (a maximum of nine months as opposed to the default of three). There is also some value in having specific offences of impeding people responding to emergencies, where there may have been no clear assault (and doctors, nurses and midwives responding to emergencies are already covered).

But shrieval summary sentencing powers were increased to twelve months across the board yesterday, so the sentencing powers under the Act now confer no advantage. In any event, the assault on Dr Jackson is far too serious to be prosecuted under summary procedure (the only way in which offences under the 2005 Act can be) and proceedings have been taken in the High Court against her alleged attacker.

So what is the rationale for yesterday’s announcement? The Minister’s civil servants have clearly advised her that the attack on Dr Jackson cannot possibly provide any justification for what she said she would do when being – well, interviewed about the attack on Dr Jackson – and so the press release states that “The initial stimulus for the [2005] Act was a perception that more serious cases affecting emergency workers (such as the recent stabbing of a Glasgow GP) were effectively handled by the criminal justice system but less serious cases were sometimes overlooked - hence the focus of the Act on summary cases."

There is only one problem with this claim – it’s directly contradicted by what the Executive actually said in proposing the 2005 legislation. Then, the Executive said explicitly that it was “unlikely that the Bill will lead to a significant increase in the number of prosecutions for attacks on emergency workers” (para 16 of the Policy Memorandum), pointing out that the Lord Advocate had already issued clear instructions to procurators fiscal on dealing with such attacks.

Admittedly, the actual rationale the Executive provided was itself problematic. It said that the legislation was “intended to make clear that such attacks are entirely unacceptable and, by highlighting the issue, serve to have a deterrent effect” (para 5 of the Memorandum).

That wasn’t hugely convincing, but it is just about arguable that an Act being passed by Parliament providing for increased sentences for assaults on emergency workers might have some educative or deterrent effect. But that is not what Ms Robison proposes to do. Ms Robison has proposed to make a statutory instrument providing for anyone who assaults a GP to be liable to – well, exactly the same sentence as they are already.

But the fact that the proposal is useless is unlikely to lead to any dispute: it can hardly be said to do any harm, and even if opposition politicians have their doubts about its usefulness, being seen to oppose “protection” for healthcare workers is probably on a par with being photographed drowning kittens. All this, however, allows the Government to be seen to be doing something (even if it really isn’t), and it provides an opportunity for trade unions to be seen fighting to protect their members (even if they really aren’t). The BBC has reported the comments of Unison’s Scottish organiser, Dave Watson, who thinks that the Government has not gone far enough:

“Mr Watson said: ‘The act is called the Emergency Workers Act - not the Emergency Health Workers Act - and it was intended to cover all types of public service workers in emergency situations.’ He said the union had long argued it should have a wider application, which could include social care workers in residential and home care, education workers in schools, environmental officers tracking illegal dumping, traffic wardens and safety wardens and utility workers.”

If Ms Robison were right about her proposed statutory instrument protecting primary care staff, then Mr Watson might have a point and the law should be extended further. But she isn’t and he doesn’t and it shouldn’t.