`. whether there is a reasonable expectation of the person recovering capacity
to make the decision in the reasonably foreseeable future. the need to be satisfied that the wishes of the person without capacity were
not the result of undue influence.'
What has been left uncertain with respect toMaking Decisionsis the timing for
implementation, which will have to be by means of an Act of Parliament. The Lord
Chancellor's Department stated in the report itself [43]:
`Clearly, legislative changes can only be made when Parliamentary time allows.'9.4 The nurse's holding power ± section 5-4) of the Mental
Health Act 1983
The MHA has provided nurses with a specific power to detain patients for a short
time [44] although this power may only be exercised within the limits of the sec-
tion. Section 5#4) provides:
`If, in the case of a patient who is receiving treatment for mental disorder as an
in-patient in a hospital, it appears to a nurse of the prescribed class [45]
#a) that the patient is suffering from mental disorder to such a degree that it is
necessary for him to be immediately restrained from leaving the hospital;
and
#b) that it is not practicable to secure the immediate attendance of a [doctor]
for the purpose of furnishing a report under [section 5#2)],
the nurse may record that fact in writing; and in that event the patient may be
detained in the hospital for a period of six hours from the time when that fact is
so recorded or until the earlier arrival at the place where the patient is detained
of a [doctor] having power to furnish a report under [section 5#2)].'This power presents a nurse who has the appropriate training/qualification with
an important professional responsibility. The power is to be exercised by the nurse
making a professional judgement as to whether the power should be utilised ± as
stated by the Code of Practice: `[i]t is the personal decision of the nurse who cannot
be instructed to exercise this power by anyone else' [46]. If, following an assess-
ment by the nurse, the power is not exercised and the patient either comes to
harm, or harms someone else, it does not follow that the nurse is necessarily liable
to any legal actionPalmerv.Tees Health Authority#1999). What will be assessed is
whether the decision not to exercise the power was taken reasonably. If it was a
reasonable decision, that is, it was a decision which a group of responsible qua-
lified nurses would have made in the same situation, no liability will follow. It is a
power in which there is an element of risk-taking and following guidance will
reduce, although not eliminate, the risks
Hence, it is wise for nurses to be familiar with the guidance in the Code of
Practice, paragraph 9.2 which states:
172 Nursing Law and Ethics