`Before using the power the nurse should assess:
#a) the likely arrival time of the doctor as against the likely intention of the
patient to leave. Most patients who express a wish to leave hospital can be
persuaded to wait until a doctor arrives to discuss it further. Where this is
not possible the nurse must try to predict the impact of any delay upon the
patient;
#b) the consequences of a patient leaving hospital immediately ± the harm that
might occur to the patient or others ± taking into account:. the patient's expressed intentions including the likelihood of the patient
committing self-harm or suicide;
. any evidence of disordered thinking;
. the patient's current behaviour and in particular any changes in usual
behaviour;
. the likelihood of the patient behaving in a violent manner;
. any recently received messages from relatives or friends;
. any recent disturbances on the ward;
. any relevant involvement of other patients;
#c) the patient's known unpredictability and any other relevant information
from other members of the multi-disciplinary team.'
As section 5#4) is written, it appears that the holding power can only be invoked
after the completion of the written record #on Form 13) and hence restraint would
not be permitted until after the making of the record. However, this in some cases
would be wholly impractical, for example, where the patient unexpectedly leaps
out of bed and runs out of the ward. In these situations, it can be argued that the
common law will permit restraint for one of a number of reasons, for example, to
prevent crime, to safeguard the well-being of others, or to fulfil the duty owed to
the patient. The filling out of Form 13 would therefore take place as soon as
possible after the restraint being used. The Code of Practice is somewhat ambig-
uous on this point. In paragraph 9.6, it seems to suggest that the power may be
invoked without completion of Form 13, but paragraph 9.4 indicates that to use
the power the Form must be completed. The case law on the subject is also unclear
and unhelpful. InBlackv.Forsey#1988) the House of Lords decided, in the context
of Scottish Mental Health Act provisions, that a common law power to arrest the insane' [47] could not be used because of the specific statutory limitation. In addition, inRv.Bournewood NHS Trust e xparte L#1998) [48] the Court of Appeal suggested that de facto detention was unlawful where Mental Health Act powers to detain were available. The fact that the House of Lords overruled the Court of Appeal would suggest that it will still be permissible to detain a patient whilst invoking section 5#4) with completion of the documentation afterwards. In addition, it is clear that section 5#4) is a power which assumes an appropriate level of staffing. Indeed, paragraph 9.9 of the Code of Practice states that[a]
suitably qualified, experienced and competent nurse should be on all wards where
there is a possibility of section 5#4) being invoked'. Hence appropriate staffing will
be an essential prerequisite for the use of the power, but, also, adequate staffing
may lessen the likelihood of the power being used. Failure to staff the ward
Mental Health Nursing 173