who are not deliberately trying to leave the ward, but who may wander out
accidentally, may legitimately be deterred from leaving the ward by those
devices. In the case of a patient who persistently and/or purposely attempts to
leave a ward or mental nursing home, whether or not they understand the risk
involved, considerations must be given to assessing whether they would more
appropriately be formally detained. ..' [51]The extent to which this advice can completely represent the legal situation is a
matter of debate, which has not been simplified by theBournewooddecision.
Restricting a person's freedom is false imprisonment, but certain restrictions are
permissible. Since the patients in these situations are owed a duty of care by the
staff, it may be appropriate to determine that there is no false imprisonment where
the patient is unthinkingly trying to leave, but that where the patient is making a
purposeful desire to leave the ward, prevention without statutory authority may
not be lawful. Needless to say, compliance with the Code of Practice would be best
practice and would at least provide a nurse with a possible defence to any legal
action.
9.6 The management of violent or aggressive patients
For some considerable time patients who present violently or aggressively have
been a matter of concern for the staff most closely involved with their care and
treatment. As long ago as 1977, the Confederation of Health Service Employees in
its report,The Management of Violent and Potentially Violent Patients[52], attempted
to address this thorny issue. More recently it has come to the fore in relation to
handling a group of patients perceived to be particularly problematic, that is
patients suffering from personality disorder. These issues are covered in the
proposed reforms to the MHA and are discussed below.
9.6.1 The informal or detained patient
Common law justifications
It is submitted that reliance on the common law indicating that people may defend
themselves or others is the proper basis upon which to authorise activity to deal
with a violent or aggressive patient, whether that be by way of physical force,
seclusion or medication. Where some sort of physical response is necessary, the
least force necessary safely to contain the problem which the patient presents,
should be used. In many cases this may be holding the patient, or properly trained
staff using control and restraint techniques. Where such force is unlikely to be
sufficient or where its use may be harmful to the patient, staff and/or other
patients, seclusion may be necessary. In some cases an appropriate alternative may
be medication #possibly by way of sedation).
These activities have not been justified on the basis that they are `medical
treatment' within the MHA #where the patient is detained) or part of a treatment
programme to which the patient has consented. Where the person is detained, it is
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