Protection of Health Workers – an inevitable U-turn?

The Ministry of Justice has reversed a decision not to include Wales in a new law aimed at offering health workers extra legal protection against disturbances and nuisances on NHS premises. The amendments will be tabled as the Bill completes its passage through Westminster.

The measures, contained in the Criminal Justice and Immigration Bill 2008, had originally applied only to NHS premises in England after the Welsh Assembly Government (WAG) had apparently opted out on the basis that they would develop their own measures to protect health workers.

The decision was criticised as potentially unlawful on the basis that WAG had no power to opt out because the Government of Wales Act 2006 excluded criminal justice from its competence.  The decision was also criticised on the basis that failure to offer the same protection offered to health workers in England would be an unjustifiable anomaly, and lead to a ‘brain drain’ from Welsh Hospitals.    

There was some, perhaps justifiable, scepticism about the merits of the new legislation (focused as it was on lower level public order offences on NHS premises). Welsh Health Minister, Edwina Hart, had apparently instead ‘opted out’ on the grounds that ‘practical measures’ would be adopted in Wales.  The measures were to be based on the recommendations of a WAG taskforce report into the issue of violence against health workers that has since been submitted. The report, submitted on 8 April 2008, recommended a range of staff training measures, greater support for criminal prosecutions, free staff access to legal advice and support,  extended CCTV use, and a police presence on hospital premises.

However, whatever the merits of the proposed legislation, the approaches to the issue were not necessarily mutually exclusive. There is no legal or practical bar to Wales being covered by the new legislation and adopting their own practical measures to protect health workers (provided such measures do not stray into the field of criminal justice itself). Indeed, as opting out of a criminal justice measure was not an option for Wales, the decision was perhaps an inevitable ‘U turn’.

WAG will now be consulted on the implementation of the new law – probably with particular regard to the time of its commencement in Wales (which will be by order of Welsh Ministers).  Indeed, there could be scope here for further legal wrangling, particularly if WAG attempt to delay or resist the inclusion of Wales in the legislation.  However, health workers in Wales may now be seamlessly included in the new legislation and benefit from the additional practical measures proposed by the WAG taskforce in what could be a progressive example of devolution at work.