Judge: Laws, Elias, and Kitchin LJJ
Citation:  EWCA Civ 138
Summary: We bring this case to your attention not because it is a COP case (it is a decision of the Court of Appeal in the context of proceedings relating to unfair dismissal), but for two comments made by Elias LJ (endorsed by the other members of the Court of Appeal) which are of relevance to the safeguarding of adults with dementia in institutional settings.
The allegation which led to the dismissal of the two nurses in question was that they had abused patients suffering from dementia. The material allegations were that two nurses had restrained an elderly patient suffering from dementia by way of tying him to a chair which was (in turn) tied to a table. The police had been involved within days of the allegation having been made (by another nurse), but having investigated, confirmed that they would be taking no further action.
In a footnote to his judgment, Elias J commented as follows:
“71. This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council  IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. 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. 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. 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. 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. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.
72. I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. 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; and perhaps they did.
73. However, whatever the justification for the suspension, 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. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that 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, and in my view the police should never have been involved.”
Comment: The first comment of Elias LJ within this passage which may raise eyebrows is the analysis of the nature of the restraint undertaken upon the patient. As Lucy Series has pointed out, the Court of Appeal did not make any reference at this point to the MCA 2005 or (for instance) to the detailed discussion in R(C) v a Local Authority as to the circumstances under which restraint of the incapacitated can be justified (and the requirement that it be in accordance with best practice). The Court of Appeal did not, of course, have to make specific reference to these matters, but the apparently casual dismissal of the matter as a ‘technical’ nature of the assault might be thought to sit oddly with the approach taken in other jurisdictions.
The second element of the footnote worthy of comment is the discussion of the circumstances under which it is appropriate to involve the police. Some of our readers may well see the comments of Elias LJ as a welcome dose of common sense; others may well not be quite so sure.