PATIENTS ALREADY IN HOSPITAL (Hansard, 18 October 1982)

§ Mr. Pitt

I beg to move amendment No. 9, in page 5, leave out lines 38 to 43 and insert 'the nurse may authorise the detention of the patient; and in that event the patient may be detained in the hospital for a period of six hours from the time when the detention was authorised or until the earlier arrival at the place where the patient is detained of a practitioner having power to furnish a report under that subsection; and the nurse shall, as soon as is practicable having regard to all the circumstances, record the fact that he had authorised the detention and the time of that authorisation in writing and in a form prescribed by the managers of the hospital at which the authorisation took place.'. 142 I move this amendment in the hope that I can help the Minister. I have no intention of pressing it to a Division. The Minister may recall that on Second Reading I commented on the fact that the original clause read: the nurse may record that fact in writing; and in that event the patient may be detained in the hospital. I pointed out that, when I first read that, it seemed as if the nurse would have to record the fact in writing before the patient was detained.

I hoped that the matter would have been clarified by now and that it would no longer appear that a patient could run amok with an instrument and that there would have to be some bureaucracy before he could be detained. However, that is apparently not so, because the clause still seems to give the impression that a nurse is obliged to record the fact in writing before detention can occur. I have moved the amendment to clarify the clause, and I commend it to the House. It leaves out lines 38 to 43 and inserts: the nurse may authorise the detention…and the time of that authorisation in writing and in a form prescribed by the managers of the hospital". It means exactly what it says. The nurse may authorise detention and subsequently, quite properly, record it. The nurse would not have to record the fact in writing before any detention.

§ Mr. Kenneth Clarke

I acknowledge that the hon. Member for Croydon, North-West (Mr. Pitt) has tabled an amendment that is designed to be helpful and does not challenge the principle, established by the Government to the Committee's satisfaction, that it is right to give the nurse—in exceptional circumstances—power to detain a patient for six hours. That would allow time for the arrival of a medical practitioner who had the power to consider whether detentiorL was justified. In fact, the two changes that the hon. Gentleman made would be undesirable in practice and would not be wise for the House to make.

I shall begin with the more administrative, perhaps the least important but still a significant, change. The first change of substance would be to require the nurse's written record to be in a form prescribed by the managers of the hospital where the authorisation took place. I accept the hon. Gentleman's argument that there should be some form laid down to ensure that the written records are in a recognisable and reasonable form. However, we should not want the form to be determined by the managers of each individual hospital. That might give rise to a wide variation in records. Some records of the important step of detaining a patient might be unsatisfactory.

The Government propose to make use of powers that they already have under section 56 of the 1959 Act to make regulations prescribing the form in which the necessary records should be made. That would mean that we should have one form throughout the country rather than the possibility of variation, which the hon. Gentleman's amendment would produce.

The hon. Gentleman's more substantial point is that the nurse should not be required to make the record before detaining the patient—that, in an emergency, the patient might be detained and then, as soon as practicable afterwards, the nurse should make a written record. That had some appeal, and I considered the matter carefully. I shall give the reasons why, on balance, it ought not to be accepted.

We must bear in mind that we are clarifying the law. Existing law gives protection to nurses, and it has been 143 relied upon by nurses for many years. First, section 3(1) of the Criminal Law Act 1967 allows the use of such force as is reasonable in the circumstances in the prevention of crime. There is also a common law defence available to staff who act to prevent violence, to save life or in selfdefence. Those are the legal powers on which nurses have to rely when, as from time to time happens, they decide that it is necessary to detain an informal patient for such time as is necessary to allow that patient to be sectioned.

We have proposed that, to clarify the law, the nurse should be given the new statutory power to detain the patient. However, there has been some criticism of that, even in Committee. As I recollect from our debates, there were those who were wary of this and attempted to reduce the time during which the nurse should have the emergency holding power. I understand those doubts and criticisms, because we are introducing an important new concept into law—that a nurse, of his or her volition, should have the power to deprive someone of his or her liberty for up to six hours, because, in the nurse's judgment, it is necessary.

As this is a new concept, we should arouse controversy and feed fears if we said that we should move from the position where the nurse was required to record the reason for exercising that power straight away to being allowed to lock up the patient and subsequently, at the earliest practicable time, making a record. There would be a further practicable problem because, under the Bill, the six hours run only from the moment that the written record is made. The hon. Gentleman's amendment does not correct that. As we are breaking new ground and there are some doubts, we should leave the clause as it stands.

I can see difficulties, and the hon. Gentleman quoted problems that might arise. I share his concern about the case that he described of a patient running amok with an instrument or weapon. Fortunately, the Bill will not replace the Criminal Law Act or the common law powers, so that in an emergency, when a dangerous or criminal act is threatened, the nurse would have no difficulty in relying on the Criminal Law Act or the common law for the brief period that would elapse between the detention and the making of the written record.

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That is our judgment. Although tempted by this aspect of the hon. Gentleman's amendment, it is probably not wise or necessary to go so far. As we are breaking new ground, we would excite some civil libertarians too much if we accepted the hon. Gentleman's amendment. I hope that the hon. Gentleman appreciates that clause 6 has occupied its place in the Bill for some time. It was generally welcomed by the nursing organisations which gave evidence to the Special Standing Committee. To the best of my knowledge, no nursing organisation has proposed anything like the amendment or suggested that the Government should make a correction. The law should be amended in the manner that the Government propose in clause 6. It is not necessary to make the amendment proposed by the hon. Gentleman.