The nurses’ power to detain informal psychiatric patients: a review of the statutory and common law provisions in England and Wales
This paper explores the extent to which nurses can use statutory and common law provisions as lawful authority to detain informal psychiatric patients. The power of a nurse to detain informal psychiatric patients received statutory recognition for the first time in the Mental Health Act (1983). Section 5(4) of this Act, the ‘Nurses Holding Power’, provides for nurses of the ‘prescribed class’ to detain informal psychiatric patients for up to 6 hours. Further statutory authority that may be invoked with respect to the detention of patients is laid out in the Criminal Law Act (1967) and the Police and Criminal Evidence Act (1984). These statutes set out the circumstances whereby a nurse can use reasonable force to detain a patient. One of the most confusing areas in law is the extent to which common law powers can be used by nurses to detain or restrain informal psychiatric patients, including those who lack mental capacity. The detention of those patients who lack the mental capacity to express an informed desire to leave hospital has caused uncertainty and difficulties for nurses caring for them. These difficulties relate to whether it is lawful to detain and give treatment to informal patients who lack the capacity to express a choice. The principles derived from the case law are discussed in relation to detention, clinical practice and patients rights.