Section 299 of the Mental Health (Care and Treatment) (Scotland) Act 2003 relates to the ‘Nurse’s Power to Detain’ a patient, pending a medical examination. The section applies where a patient is ‘in hospital and receiving medical treatment’.
The intention of Section 299 was that it could be used in mental health settings where an informal (i.e. voluntary) patient wishes to leave hospital and the nursing staff perceive a need to detain them. Nurses have the power to detain a patient for up to three hours if there is no doctor immediately available who can assess and, if appropriate, legally detain them.
The nurse’s power to detain cannot be used if a doctor is immediately available. For example, if a doctor is available and on call within the hospital but it would take time to contact them and a short time for them to arrive; this is classed as the doctor being not immediately available. In this scenario it would be appropriate to consider using the nurse’s power to detain.
Registered Mental Health Nurses (RMNs) or Learning Disability Nurses are the only nurses who have the power to detain a patient in hospital under Section 299 of the Act. However, all healthcare practitioners have a duty of care. Nurses with alternative registration still have a duty of care and could consider using common law, where necessary, to prevent a patient from leaving hospital, if it appears immediately necessary to reduce the risk of harm.
Factors to Consider Prior to Implementing the Nurses Power to Detain
Before deciding whether or not to exercise the power to detain a patient, a nurse should weigh up the likely arrival time of a doctor against the likely intention of the patient to leave. Some patients, who express a wish to leave hospital, may be willing to wait until a doctor arrives to discuss their options further. The nurse should also assess the likely consequences of the patient leaving hospital immediately, taking into account factors such as the potential harm to the patient or others.
Detaining the patient in hospital without use of the ‘Nurse’s Power to Detain’ is the same as keeping the person in hospital against their will (referred to as ‘de facto detention’). This places restrictions on the patient without providing them with the protection of the rights they would have if they were formally (legally) detained.
When considering using the ‘Nurse’s Power to Detain’ a patient in hospital the nurse must be satisfied that the following criteria are met:
- The patient has a mental disorder (i.e. any mental illness, personality disorder or learning disability however caused or manifested)
and - It is necessary for the protection of the health, safety and welfare of the patient
or - It is necessary for the safety of another person that the patient be immediately prevented from leaving hospital
and - A medical examination of the patient must be carried in order to determine whether it is necessary to continue to use compulsory measures to prevent the patient from leaving hospital.
Implementation of the Nurses Power to Detain in Psychiatric and Non-Psychiatric Settings
Please refer to the following for more information:
‘Nurse’s Power to Detain, Section 299’ Mental Welfare Commission for Scotland