Nursing Law and Ethics

adequately will mean the section cannot be exercised at all, or only with great
difficulty. The MHA, therefore, implicitly requires wards to be staffed with at least
one nurse who is appropriately qualified, and it may be the case that many hos-
pitals/wards will fail to reach this standard. Whether the nurse has knowledge of
the particular patient or is trained in the specific area of mental disorder, before
being able to use section 5#4), is a matter of good practice only. The legislation
requires only qualification and adherence to the process.
The use of the holding powers available under the MHA has been a source of
concern for many years. The Mental Health Act Commission has commented both
in its Seventh Biennial Report and its Eighth on the high, and increasing, use made
of the powers. The fact there is `[h]igh usage does not necessarily imply misuses,'
[49] but raises the question whether more patients should be detained under
sections 2 or 3 of the MHA. If the usage is lowered, it may be that more dubious
methods are being used to prevent patients leaving hospital care:

`For example, Commissioners are aware of instances where patients have been

warned that they would be detained under section 5#2) if they tried to leave.

Such a threat, or implied threat, of the use of compulsory powers amounts to de

facto detention. It also raises serious questions about the distinction between

voluntary and compulsory admission and whether the safeguards of the Act are

being denied to those patients coerced into informal admission.' [50]

9.5 Detention by informal methods

One of the major controversies concerning detention is the use of methods, for
example confusion locks, which mean that informal patients cannot leave the
hospital but there is no statutory authority to detain. As mentioned earlier, it has
now been decided, by the House of Lords inRv.Bournewood NHS Trust, e xparte L
#1998), that an incompetent, but compliant, patient does not require formal
detention to validate their presence and treatment in hospital. This is despite the
argument that the individual's rights, and hence protection, will be greater if for-
mally sectioned. The protection for health professionals may also be argued to be
greater where they are dealing with a detained patient. However, where that
incompetent but otherwise compliant patient has a tendency to wander and thus
be a danger to themselves or others, sectioning may be seen as an option, but a
very drastic one. The Code of Practice suggests that locking doorsmaybe per-
mitted but should be seen as a last option and should be part of a patient's care
plan:

`The safety of informal patients who would be at risk of harm if they wandered

out of a ward or mental nursing home at will, should be ensured by adequate

staffing and good supervision. Combination locks and double handed doors

should be used only in units where there is a regular and significant risk of

patients wandering off accidentally and being at risk of harm. There should be

clear policies on the use of locks and other devices and a mechanism for

reviewing decisions. Every patient should have an individual care plan which

states explicitly when he or she will be prevented from leaving the ward. Patients

174 Nursing Law and Ethics