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Health Service Executive Memo concerning legal assistance on the removal and step down of patients

09 November 2016

TO:    All INMO Members

FROM:    Edward Mathews (Director of Regulation & Social Policy)

RE:    Health Service Executive Memo concerning legal assistance on the removal and step down of patients who no longer require acute hospital beds

Dear Colleagues, 

We have received a number queries from concerned members regarding legal advice provided by the HSE, to public health services, concerning the removal of patients who are unwilling to leave their acute hospital bed, or do not have the capacity to consent to step down services, but no longer require an acute hospital bed.

In particular, members have been concerned with regard to the following advice;

The memo considers circumstances where a patient may refuse to leave a hospital bed, where they have been medically discharged, and advises that a nurse has lawful authority to move a person from a ward to ward within a hospital, regardless of the wishes of a patient, and further advises that the nurse has an equal right to remove the person from a bed improperly occupied.  The advice continues that once a person refuses to leave, the nurse is entitled to remove the person as a trespasser, using minimum force to do so.

I wish to advise members that under no circumstances should a nurse or midwife use any force to remove any patient from a bed they refuse to vacate.  While the legal advice provided by the HSE addresses the legality of the use of force, in the context of non-fatal offences against the persons, it in no way addresses the professional obligations of a nurse or midwife.  This Organisation believes that it is immoral to suggest that a professional, who enjoys a trusting and caring relationship with a patient, should at any time use force to remove that patient from their bed against their will.  Furthermore, it is quite clear that any nurse or midwife who would attempt to use force for the purposes of removing a person from a bed, where they had refused to leave that bed, and the bed was required for another patient, would leave themselves liable for action to be taken pursuant to the Nurses & Midwives Act 2011 in relation to their fitness to practise.  Furthermore, it is clear that any such actions on behalf of the nurse or midwife would amount to a breach of their Code of Professional Conduct & Ethics, as issued by the Nursing & Midwifery Board in December 2014.

Upon becoming aware of this advice from the HSE, we raised the issue at a senior level within the Organisation, and we were assured that the advice was withdrawn, however, we have continued to receive enquiries.  In that context we have once again raised the issue with the HSE, and they have again indicated that the legal advice is withdrawn.

However, and in conclusion, for the avoidance of any doubt, and in case any manager were to suggest to you that you should implement this advice, it is essential that no nurse or midwife become involved in the forcible removal of patients from bed spaces, and should any manager instruct you to do so, it is our advice that you refuse to do so on the basis that it would be a breach of your Code of Professional Conduct & Ethics, as a Registered Nurse, and that your duty as a Registered Nurse to patients and to your Registering Body, supersedes your duty to follow instructions from employers in this regard.

If you encounter any difficulties in this regard, please contact your local Industrial Relations Officer immediately.

Yours sincerely,

Edward Mathews
Director of Regulation & Social Policy 

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