Threatening behaviour from patients, know your rights

By far, the biggest source of need for advice over the summer break was calls about verbal and physical violence, threats and intimidation – mostly from out-of-town patients, often with an element of drug-seeking behaviour and universally due to misdirected anger. The thing was that the recipients of this anger were caring, well-meaning and in despair.

Objectively, we should not be surprised that these behaviours are directed at front-facing health professionals. These days, we can’t enter supermarkets without seeing a sign such as “Thank you for showing us respect. Safety is important to us. If your behaviour makes anyone feel unsafe, you will be asked to leave and the police may be notified.”

The website of the Health and Disability Commissioner (hdc.org.nz/contact-us) has a notice stating “Our team treats complainants with fairness and respect. We acknowledge that you may be feeling distressed or angry in making a complaint, but we take a zero-tolerance approach to any abuse towards our staff. Staff safety and wellbeing are paramount to the HDC. Offensive, threatening or abusive communications will not be tolerated and will be responded to accordingly. This may include issuing a warning, reporting a matter of concern to the police, or modifying or restricting access to our services.”

Of course, health professionals, especially first-line responders, are in a different position from staff, say, at the HDC – first and foremost, you have an obligation to assist in an emergency. However, you also have the right to be safe at work and in your homes. Therefore, in light of this regrettable environment in our country, I thought it might be helpful to provide some tools to add to your kete for dealing with threatening situations.

The patient is verbally abusive and rants at staff, causing us to feel unsafe. We want to call the police, but the patient says that if we do, it will be a breach of their privacy. What can we do?

You are allowed to call the police and say the bare minimum of what is necessary in order to ensure the safety of yourself, staff, other patients or, indeed, the patient concerned. You can tell the patient that you understand their concerns but the law makes safety the first priority of confidentiality.

Rule 11 of the Health Information Privacy Code 2020 (privacy.org.nz) provides that you can disclose information if it is “necessary to prevent or lessen a serious threat to public health or public safety, or to the life or health of the individual concerned or another individual”. The disclosure must be to someone who can do something about the threat (eg, the police).

The patient yelled at the receptionist and upset waiting patients. We don’t feel safe having them on our books, but no other practice has room for new patients. Do we have to keep them as a patient?

No. You can end the relationship or, as a compromise, enter into a behaviour contract to give the patient another chance.

As long as the patient does not require urgent care, then the Medical Council of New Zealand guidelines for ending a doctor–patient relationship specifically allow that “if the patient is abusive, violent or poses a significant safety risk to you or your colleagues”, you can end the relationship. This is provided the steps are followed as set out in the guidelines.¹

The patient has said that they are going to sit in the waiting room and won’t leave. What can I do?

Trespass occurs when you require someone to leave your property and they don’t leave.

If the police have been involved, they will often assist you with a trespass notice. However, you don’t need the police to prepare a notice; you can prepare your own. In fact, a verbal notice is sufficient, although a written notice has the benefit of being watertight evidence.

To give oral notice, tell the person they must leave the property and must not return. For written notice, the police provide further information and a template on their website (tinyurl.com/trespass-notices).

Service is affected by handing a copy of the notice to the person concerned. Once the notice is served, you should also provide a copy to the police by using their “Something else” non-emergency online report form (webforms.police.govt.nz/en/form/something-else) or by going to your local station. Keep the original notice yourself.

The notice applies for two years after being served. Trespass is punishable by a fine of up to $1000 or imprisonment of up to three months.

The patient is waiting outside the surgery, following staff and haranguing them. They also posted offensive comments about staff online. What can we do?

The Harassment Act 1997 can assist (legislation.govt.nz). Harassment is defined as a pattern (two or more separate events in a 12-month period) of behaviour that includes any of the following acts:

• watching, loitering near, or preventing or hindering access to or from, your place of residence, business, employment or any other place that you frequent for any purpose
• following, stopping or accosting you
• entering, or interfering with, property in your possession
• making contact with you (whether by telephone, correspondence, electronic communication or in any other way)
• giving offensive material to you or leaving it where it will be found by you, given to you or brought to your attention
• giving offensive material to you by placing it in any electronic media where it is likely that it will be seen by you or brought to your attention
• acting in any other way that causes you to fear for your safety and would cause a reasonable person in your particular circumstances to fear for their safety.

If you have been harassed, you can apply for a restraining order. If successful, the court will grant an order restraining the patient from harassing you or encouraging others to harass you. The order can be for a specified period of time or until an application is made for it to be discharged.

There is also the power to impose special conditions, such as to remove images from social media, or to not film you, make excessive noise around your place of work or approach patients. The court will not restrain the patient from being able to complain about you.

Breach of a restraining order carries significant penalties of a fine of up to $5000 or imprisonment of up to six months, and for a third offence in three years, imprisonment of up to two years.

In short, there are steps you can take to be protected from threatening behaviour, all of which, I accept, is cold comfort when facing another day of misdirected anger.

Gaeline Phipps is a barrister with Lambton Chambers in Wellington. If you have a request for this column, email gphipps@professionallaw.co.nz