Legal Issues of Medical Personnel in Dealing with Aggressive or Agitated Patients

In their report 'Violence and Health' (2002), the World Health Organization describes various forms of violence, its consequences on a person’s health, and various preventive measures that can reduce the manifestation of violence. Violence at the workplace is not a new or unknown phenomenon. The focus on health and safety at work has become a priority in recent decades, as research has shown that long-term violence can lead to stress, burnout and depression, cardiovascular diseases and musculoskeletal problems in employees, and have serious consequences for hiring organizations.[1]

Experts conducting research on workplace violence in Lithuania avoid generalisations because some authors focus more on analysing violence itself as a phenomenon, while others focus on identifying rates of violence, by explaining potential consequences or providing effective anti-violence measures; There is, however, lack of legal assessment of legal liability and stress- related consequences for both, the perpetrator and the employer. From a legal point of view, violence is an act prohibited by law and characterised by certain features: (a) illegality, (b) the intentional nature of the act, (c) targeting another person, (d) physical or mental influence on the perpetrator or victim.[2]

The main feature that defines violence as an unlawful act that is prohibited by law and results in legal liability, is the characteristic of illegality. Legal norms prohibiting violence can be found in constitutional (e.g., Article 8 of the Constitution of the Republic of Lithuania states that “Hijacking of a state power or its institution by violence is considered to be unconstitutional, illegal and invalid.”), administrative (Law on Protection against Domestic Violence of the Republic of Lithuania), civil (e.g., Article 1.91 of the Civil Code of the Republic of Lithuania “Regarding the case of fraud, violence, economic pressure or actual threat, as well as invalidation of a transaction made by a representative of a party with another party by a malicious agreement or due to aggravated circumstances”), as well as criminal (e.g., Article 129 of the Criminal Code – Murder; Article 135 of the CC -  Serious impairment of health, etc.), and other laws. Legitimate use of physical force (for example, in cases of self-defence, necessity, detention of a perpetrator, performance of professional duty or otherwise) is not considered criminal violence.

The intentional nature covers only the intentional (whether direct or indirect) act of a person, because the negligent form of guilt has no violent motivation to witness the violent nature of the act. Moreover, the meaning of the term violence should not only be confined to harsh physical force. The meaning of this term is much broader, encompassing various forms of maltreatment of people.[3]

Mention should also be made of the World Health Organization's (WHO) definition of violence, which is defined as “intentional use or threatening to use physical force or power against oneself, another person, a group of individuals or the public to cause or be likely to cause injury, death, psychological damage, maldevelopment or deprivation” [4]. The WHO has also proposed one of the universal classifications of violence, which also forms legal norms establishing legal liability for violence. According to the WHO, violence is divided into physical, sexual, psychological and deprivation or neglect. The WHO emphasizes that violence can take many forms, which can often coincide.

The term physical violence refers to the use of physical force against another person or a group of people, which results in physical, sexual or psychological harm to a person's safety, well-being and / or health. This includes beating, kicking, punching, stabbing, shooting, pushing, biting, pinching, and the like. Physical violence also includes assaults or attacks, which are defined as intentional conduct in which one person is physically harmed, including sexual exploitation (rape)[5]. The WHO distinguishes between two forms of physical violence: physical violence with a weapon (e.g., stabbing, shooting) and non-weapon physical violence (e.g., pushing, beating, and pinching). Physical violence is manifested by the obvious acts of the perpetrator, and it is therefore relatively easy to identify. On the other hand, psychological violence is less obvious than physical violence; it is more difficult to identify, thus, the WHO underline that this concept is extremely broad, encompassing several different expressions. The WHO propose to subdivide psychological violence into subspecies, each with its own specific characterisation.

Psychological violence, or emotional abuse, is defined as the intentional use of power, including threats of physical force, against another person or group of people that can impair a person's physical, mental, spiritual, moral, or social development. This concept includes abuse, bullying, harassment and threats.[6]

Abusive behaviour is the conduct of an individual to humiliate, degrade or otherwise demonstrate a lack of respect for the dignity or worth of another person.

Bullying is repetitive and offensive behaviour that takes the form of vengeful, cruel, malicious attempts to humiliate or otherwise harm a person or group of individuals.

Harassment is behaviour of negative character aimed at another person's age, disability, HIV status, marital status, gender, sexual orientation, gender reassignment, race, colour, language, religion, political views, attitude to trade unions or other opinions or beliefs, national or social origin, affiliation with minorities, status of property, ownership, origin and the like, that is inconsistent with or unwanted by another person, and which violates the dignity of men and women in the workplace.

Sexual harassment is any unwanted, unacceptable or unexpected sexual offensive conduct that threatens, humiliates or confuses another person.

Racial harassment means any threatening behaviour directed at another person's race, colour, language, national origin, religion, minority status, origin, or other status that is inconsistent with or objectionable to another person's views, beliefs, and which violates the dignity of males and females in the workplace. 

Threats is the intended use of physical force or power (psychological force) that results in fear of physical, sexual, psychological harm or other negative consequences for the person or group of persons being threatened.

When it comes to manifestations of violence in a work-related, healthcare-providing environment, the emphasis lies on aggressive patient behaviour, which includes:

• Offensive verbal language (insults),

• Persistent anger at staff,

• Refusal to obey staff requests by pushing, kicking, hitting with fists, throwing things and food at the staff,

• Refusal of treatment (e.g., removing the needle for intravenous infusion).[7]

With such a wide range of definitions of violence, it is difficult to identify legal liability for violent behaviour. In addition, the concept of work-related violence and the choice of terms depend primarily on the specifics of culture, tradition and language.[8] Concerning the Lithuanian legal regulation, it should be noted that the legal acts contain the notion of work-related stress, stating that it is “an employee's reaction to unfavourable psychosocial conditions of work environment, work requirements, work organisation, work content, psychosocial factors in interpersonal and/or employer relationships”. [9] On the other hand, despite the cultural diversity and different terminology used in various countries, a general conceptual approach must be retained, i.e., the concept of violation of the physical, social or psychological well-being of the worker (both, employee and employer). By having one clear and precise definition of violence in the workplace, it would make it possible to settle the problem when certain forms of violence, outside the normative definition, may lead to a situation where violence is not prevented, and the rights of the person concerned are not properly protected. [10]

When analysis of work-related violence takes place, the aspect of protection of employees' violated rights is equally important. The legal principle of ubi ius ibi remedium is of paramount importance, as without adequate mechanisms to protect workers' rights, the fight against violence and stress at work would be largely ineffective and even impossible.

Legal liability is divided into branches of law. Modern law, when defending the good that is recognized by the state, gives priority to the branches of Civil, Administrative, and Constitutional law. Criminal law is the last tool (ultima ratio) in the assessment of an infringement. Only when other laws cannot ensure the protection of the particular good, criminal liability may be applied. Therefore, the most stringent form of legal liability in law is criminal liability. Under the Criminal Code, the regulations governing liability for violent behaviour can be divided into general and special.

When analysing the content of violent crimes, it should be noted that there are no specific rules on liability for violence used against a healthcare provider. The point is that while the legislature has provided for a very broad list of persons who may be considered victims when they are subject to violence (e.g., Articles 286, 287 of the Criminal Code, Article 507 of the Code of Administrative Offences), a person providing health care services is not considered a public servant or a person performing public administration functions. Therefore, the violent acts of the perpetrator against those professionals are not qualified according to corresponding rules (Article 286 of the Criminal Code; Article 507 of the Code of Administrative Offences). The legislator equates persons providing health care services to a civil servant only in cases when they themselves commit crimes related to bribery (Art. 225 of the Criminal Code), bribing of a mediator (Art. 226 of the Criminal Code), grafting (Art. 227 of the Criminal Code), abuse (Art. 228 of the Criminal Code), failure to perform duties (Article 229 of the Criminal Code). Violence against a doctor, nurse, paramedic, etc. imposes criminal liability on a person in accordance with other general provisions of the Special Part of the Criminal Code, for example, crimes against human life, crimes against human health, crimes dangerous to human life and health.

It is also noteworthy that unwanted sexual attention and sexual harassment of a patient towards a medical practitioner cannot be assessed under special articles of the Criminal Code rule either. The point is that the valid rule of Article 152 of the Criminal Code establishes the necessary condition of liability – by service or other dependence of the victim on the perpetrator. The person providing personal health care and the patient have no subordination towards each other. For this reason, this rule cannot be applied. In such a case (depending on the circumstances of the commission of the act), liability for violation of public order may be applied by Article 284 of the Criminal Code and Article 481 of the Code of Administrative Offences).

Review questions:

1. What are the necessary judicial features of violence?
   
2. Is the healthcare provider treated as a civil servant and subject to special statutory protection against violence?