A SEARCHING QUESTIONA couple of years ago this column drew a parallel between the historical governance of Russia and the management of the NHS, saying that as neither Romanoff nor Smirnoff had made any difference to the fate of the Russians, reforms made no discernible impact on the NHS.

We now see the intractable violence in Russia finding a further echo in the NHS.

Staff and property are at the mercy of patients and visitors.

Theft and fraud abound.

No one seems willing, or able, to confront this state of affairs.

Bewilderingly, doctors, nurses and managers often collude in the perpetuation of criminal behaviour.

The violence can be particularly frightening in institutions harbouring, in that evocative phrase, criminal lunatics.So it came to pass that Broadmoor Special Hospital had to bite the bullet in 1997.

The existing policy had been that patients there were searched for offending objects only when there was reason to do so.

Taking advantage of this laxity, an inmate secreted a heavy drinking mug on his person with a view to attacking a hospital priest.

Somewhat late in the day, the hospital authority realised that waiting for a cause to search patients did not sufficiently protect patients, staff or visitors; neither did it meet the risks of patients hiding objects to harm themselves or carrying illicit drugs or alcohol.

It instituted random and routine searches without the consent of patients or there being a cause for the search.

Patients protested and so apparently did some doctors arguing that their therapeutic relationship with patients would be harmed by random and promiscuous searches of patients.

Some patients went further and applied to the High Court for a judicial review of this 1997 policy.

Mr Justice Potts turned down their application, holding there was an implied general power of search and that the hospital's policy was reasonable in the Wednesbury sense.The patients appealed.

The Court of Appeal in R v Broadmoor Special Hospital Authority and another, ex p S and Others, (1998) The Times, February 17, decided that hospitals detaining patients under the Mental Health Act 1983 had a general power to authorise random and routine searches of patients without cause, overriding, if necessary, medical opinion against its exercise.

The Court argued that detention for treatment necessarily implied control for that purpose.

Broadmoor had shown a "self-evident and pressing need" for the power contended and, given that it held mentally disordered patients "under conditions of special security on account of their dangerous, violent or criminal propensities", and it was essential to sanction it these powers to fulfil its prime function.

In the interests of all and in the provision of a safe therapeutic environment for patients and staff, it was to be held that an express power of detention carried with it a power of control and discipline.

Individual do ctors, blinkered by their sometimes idiosyncratic view of therapeutic needs, could not be allowed to subvert a policy designed to apply to all -- anything else could be a recipe for chaos and danger.There you have it then.

Dangerous lunatics with criminal propensities may be lawfully searched for means by which they could harm themselves or others.

One cannot conceive of a more obvious "self-evident" proposition but in the years it spent in psychiatry this column was continually perplexed by the antipathy of doctors, nurses and managers to crack down on violence.

One consequence of this robust decision is not so obvious but bears immense importance -- if violent attacks on staff are reduced, recruitment and retention could improve.

AND A TAXING ANSWERIt ought to be a truth universally acknowledged that only a madman pays more tax than he needs to.

This column was informed of this pearl of wisdom by a psychiatrist in the North who held that a Yorkshire man was to be deemed suffering from mania (a psychotic condition in which one of the cardinal symptoms is an excess of generosity) when he was keen to pay money to the Inland Revenue without the thumbscrews being applied.

The furore that greeted the proposed extension of the earnings basis of taxation was reassuring in that it reflected the probable sanity of the professions, in particularly of the Bar which succeeded in commandeering the correspondence columns of the larger public prints.It is no real surprise when members of the Bar, proud possessors of robes with honorarium pockets, protest so vigorously but when Hospital Doctor, February 12, carried the headline, "Tax bombshell blasts seniors", we were entitled to be taken aback for we do not expect saintly doctors to grudge the Revenue an early share of the lucre.

A consultant anaesthetist, facing a tax bill of £3,600, bleated plaintively, "This is incredibly serious for a lot of people.

Sometimes you might not be paid for up to six months and some patients never pay".Centuries of hatred and detestation have put steel up the Revenue and it produced a point by point rebuttal of the Bar's concerns in a Revenue Note on the Press Release of December 22 1997.

Stricken doctors in private practice could also take note.

Apparently the concern of the Government is to "rely on correct accountancy principles".

Further, these "correct accountancy principles" require that tax is payable only on work reasonably certain to be paid, only completed work has to be paid for (barristers are deemed not to have "work-in-progress"; ditto, presumably, doctors) and the determination of which fees for work is reasonably certain to be paid may take place when accounts are being finalised some months after the end of the accounting period when many of the doubts regarding taxing down etc.

will be resolved.

Putting the boot in, the Revenue made comparison with the plight of poor mugs on Schedule E taxation who have their tax filched at source -- remembering the adage "tax delayed is tax saved" should make self-employed professionals duly grateful.The crux of the problem is, of course, late legal aid (and health insurance) payment.

A government converted to applying "correct accountancy principles" may be amenable to "correct debt settlement".

Perhaps that embodiment of equity, the Lord Chancellor, could be persuaded to bang a few heads together.

A LITTLE LOCAL KNOWLEDGERecently in a magistrates' court in the Midlands the justices were making heavy weather of accepting an order agreed by the parties in family proceedings.

Their extreme caution was informed by the town's notoriety concerning child welfare.

"A nightmare", murmured counsel, referring both to the chronic indecision of the justices as well as the town's attitude to its children.

It is well acknowledged that the purpose of having lay justices and jurors is to avoid giving lawyers a monopoly over the apparatus of justice.

A secondary purpose is to have a local input into justice, especially in summary matters which come up for adjudication to a bench which would normally have knowledge of local conditions and concerns.

In theory, "local community input" sounds an excellent idea redolent of bobbies on bikes and neighbourhood watches.

But in practice in an adversarial system there is scope for injustice if the extent of judicial knowledge is unknown to the parties and therefore incapable of being tested.

Any hint of bias may be dispelled by the individual justice, or even the entire bench, stepping down.

More problematical is casual or common local knowledge acquired by the justices.

Take the case of a multi-national company which has a local factory facing prosecution for a breach of some environmental by-law.

Say there has been some correspondence in the local newspaper debating if the factory's effluent could be toxic.

The locally based justices will, of course, be aware of the concerns but not obviously so the company's legal advisers who could be based in some for away city.

Some mechanism must be found to apprise the parties of the local knowledge the justices might utilise.

In Norbrook Laboratories (GB) Ltd v.

Health and Safety Executive, The Times, February 23, 1998, the Queen's Bench Divisional Court, allowing an appeal from conviction, held that where justices relied on personal local knowledge in a trial they should let both the defence and prosecution know of that fact in order to give them an opportunity of commenting.

TO MEDICAL LAW, A JOURNALThis column received a copy of the first issue of a new journal, Medical Litigation, subtitled "The full monthly medico-legal review".

It aspires to keep practitioners fully apprised of the momentous changes now taking place in the field.

To this end the format is informal and, in the jargon, "user-friendly".

Reference is made to litigation in other jurisdictions, Canada and the United States featuring in the first issue.

There is an article on conditional fee insurance, there is a nod to exchanges in Parliament, abstracts of recent articles in journals, a notice board for coming events, a review of a book, brief notes and a gossip column.The meat is to be found in three cases which are briefly reported and commented on by a lawyer.

A novel feature is that the experts appearing on either side are listed along with counsel and instructing solicitors.

The entire venture is an interesting and worthwhile one but one suspects it will flourish or fall on the quality of the cases it chooses to report and comment on.

The first of the cases is one growing fast in notoriety -- Bolitho v City and Hackney Health Authority (see NLJ February 20, 1998) where the House of Lords made what are considered to be significant obiter remarks on the Bolam doctrine.

With respect, this column continues to hold that any view there could now be a significant re-assessment of Bolam in the vast majority of negligence cases is an altogether sanguine one -- life will largely go on as it did before.The second case for comment is by far the most interesting of the trio in that the Court of Appeal refused to interfere in a first instance decision which allowed an action to be brought some f ourteen years after the alleged negligence -- Farthing v North East Essex Health Authority.

The plaintiff underwent a hysterectomy in July 1981.

The writ was issued in August 1995.

In the meantime the surgeon had gone to live abroad.

The trial judge, in exercising the court's discretion under s 33 of the Limitation Act 1980, commented he had been persuaded by the defendants obtaining neither a statement from the surgeon nor an indication whether or not he could attend at trial -- not being convinced there could be significant, as opposed to natural, impairment in this witness' memory after this passage of time.The Court of Appeal refused to intervene with the discretion exercised by the trial judge.

This would not arouse comment normally but is unusual in Limitation Act cases.

As Mr Charles Lewis, barrister, comments, "This is, incidentally, the only case I have found where a defendant in a medical negligence action has been unable to persuade the Court of Appeal to reverse a finding by the trial judge on discretion".In the third case, the Court of Appeal allowed an appeal for the defendant health authority in a case of alleged negligence involved in a forceps delivery -- inter alia, the trial judge's factual conclusions as well as the opinions of the plaintiff experts were at variance with the evidence of the obstetrician in question, the only material witness to events.

MAKING NO BONES OF ETHICSWhen Jack "Bonecrusher" Cunningham grappled with, threw to the canvas and pinned butchers selling beef-on-the-bone on the basis of research showing a minuscule risk of the consumer contracting the new variant of Creutzfeldt Jakob disease, a cry rose in the land at this hysterical act which was unworthy of any government charged with affairs in a mature and responsible society.

Where will it end, we asked, anxiously scanning the horizon for other edible substances that could be proscribed in a further demonstration of the powers of this frenzied nanny.

More to the point, how were doctors to deal with patients scared out of their wits by this never-ending stream of scandal and horror? A communique -- issued by the NHS Executive assures us that powers-that-be have not taken complete leave of their senses.

The issue was blood donated by persons going on to develop CJD.

Any that was unused was withdrawn but there was an obvious ethical question how those already transfused with this "tainted" blood were to be advised.

The Department of Health has now concluded that these patients need not be informed as;-- it is unlikely that CJD will be spread in this way-- there is no diagnostic test for CJD and-- even if a test was available, there is no preventative treatment that could be offered.

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the general view is that patients will not benefit from this knowledge, and that uncertainty created by informing patients could have the contrary effect causing unjustified worry and creating a permanent blight on their lives in relation, for example, to obtaining life or health care insurance .

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."In other words," where ignorance is bliss, 'Tis folly to be wise".(First line sponsored by the DOH, the second by the Min of Ag and Fish).