RCN position on the substitution of mental health nurses in inpatient mental health wards across the UK

The Royal College of Nursing (RCN) has been approached by multiple members, who have raised concerns about inpatient mental health services endeavouring to close nursing vacancy gaps in in-patient mental health wards (both adult and children and adolescent mental health services (CAMHS) by substituting registered learning disabilities nurses and mental health nurses with registered adult nurses and/or children’s nurses. 

We have also seen discussions around replacing the ‘registrant’ nurse with other ‘registrant’ allied health professionals. We have scrutinised the legal and professional implications of such actions if they have or were to occur. 

Although there are ongoing debates around transferable capabilities between learning disabilities and/or mental health nurses with other registered nurses who are qualified in a different field of practice and/or allied health professionals, there are legal implications if such substitution is to occur within in-patient mental health services, where nurses may be required to exercise emergency holding powers to prevent/restrain patients from leaving hospital:

• Section 5(4) of the Mental Health Act (“MHA”) 1983 (England and Wales)
• Section 299 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (“MHSA”)
• Article 7(3) of the Mental Health (Northern Ireland) Order 1986 (“MHO”).

Part II of the MHA (England and Wales), Part II of the MHO (Northern Ireland), and Part 5 and 6 of the MHSA allow for patients experiencing a mental disorder (as defined) to be admitted informally and/or detained in hospital for both assessment and treatment, where it is necessary for the health and safety of the patient or the protection of others.

For a patient who is already an in-patient at a hospital, an application for admission/treatment must be supported by a report from the registered medical practitioner (England and Wales) or approved medical practitioner (Northern Ireland and Scotland) in charge of treatment for the patient. If a medical practitioner is not immediately available to provide such a report as an emergency measure, a ‘nurse of the prescribed class’ has the power to detain a patient in a hospital for up to six hours (s5(4) of the MHA; Article 7(3) of the MHO) and up to three hours (s299(2) of the MHSA), until they can be assessed.

 

Prescribed Class - England and Wales

Section 2 of the Mental Health (Nurses) (England) Order 2008 and Mental Health (Nurses) (Wales) Order 2008 defines a ‘nurse of the prescribed class’ as follows:

2 (1) For the purposes of section 5(4) of the Mental Health Act 1983 (power to detain patient in hospital for maximum of 6 hours) a nurse of the prescribed class is a nurse registered in either Sub-Part 1 or 2 of the register maintained under article 5 of the Nursing and Midwifery Order 2001, whose registration includes an entry specified in paragraph (2).

(2) An entry in the register referred to in paragraph (1) is an entry indicating that the nurse’s field of practice is either:

(a) mental health nursing, or
(b) learning disabilities nursing.

Prescribed Class - Northern Ireland

Form 6 of the MHO , as underpinned by Article 3 of the Mental Health (Nurses, Guardianship, Consent to Treatment and Prescribed Forms) (Amendment) Regulations (Northern Ireland) 1998, defines the ‘prescribed class of nurse’ as follows:

(a) in Part 3 (first level nurse trained in the nursing of persons suffering from mental illness)

(c) in Part 5 (first level nurse trained in the nursing of persons suffering from learning disability)

(f) in part 13 (nurse qualified following a course of preparation in learning disability nursing)

g) in part 14 (nurse qualified following a course of preparation in learning disability nursing)

Prescribed Class - Scotland

Section 2 of the Mental Health (Class of Nurse) (Scotland) Regulations 2005 (“MHO”) defines the ‘class of nurse prescribed’ as follows:

Class of nurse:

2. For the purposes of section 299(2) of the Mental Health (Care and Treatment) (Scotland) Act 2003 (nurse’s power to detain pending medical examination), the class of nurse prescribed is a nurse registered in Sub-Part 1 of the Nurses' Part of the register, whose entry includes an entry to indicate that the nurse’s field of practice is mental health nursing or learning disabilities nursing.

This means that only registered nurses whose field of practice entry on the NMC register is either mental health and/or learning disabilities nursing may use the power to prevent a patient from leaving a hospital [or detain] for the purpose of s5(4) of the MHA; Article 7(3) of the MHO; and s299(2) of the MHSA.

Allied health professionals and registered nurses whose field of practice entry is only adult nursing or children’s nursing cannot use the holding power in the circumstances described, even if they work in mental health or learning disabilities fields, irrespective of the practice setting. They also cannot use this power to restrain [or detain] even if they have undertaken additional relevant qualifications (unless these qualifications have led to them successfully registering a mental health or learning disability field of practice with the NMC). 

If registered mental health and learning disabilities nurses are substituted with adult and children’s nurses (or other healthcare professionals), we are concerned the risk is twofold: first, there is a risk that, where no nurse of the prescribed class is present, patients cannot be prevented from leaving the hospital pending the attendance of a medical practitioner/clinician, presenting a clear risk to patient safety and/or the protection of others; second, there is a risk that the restraint/detention of a patient may be unlawful, where an adult or children’s nurse prevents a patient from leaving hospital under s5(4) of the MHA in England and Wales; Article 7(3) of the MHO in Northern Ireland; and s299(2) of the MHSA in Scotland, using legal powers which are not available to them. 

Although s5(4) of the MHA; Article 7(3) of the MHO; and s299(2) of the MHSA are short-term emergency holding powers, the impact on patients is still significant: they are prevented from leaving the hospital against their will and may be subject to restrictive interventions such as physical restraint. 

Therefore, all registered nurses and allied health professionals working within in-patient mental health services must understand the purpose and scope of this legislation, including their specific role in enacting it. In addition, they must fully understand the legal rights of those within their care and be competent and accountable in a way that upholds these rights and reduces restrictive practice while protecting patients and the public from harm. 

With the above in mind, we are also concerned that if adult or children’s nurses are placed in roles where they may be expected to use emergency holding powers under s5(4) of the MHA; Article 7(3) of the MHO; and s299(2) of the MHSA, they may be at risk of breaching their requirements under the Code , even if inadvertently. We also consider legal risks to providers of in-patient mental health services if the lawfulness of a patient’s restraint/detention is challenged in the courts.

Providers of in-patient mental health services must urgently seek assurance that their current and future workforce planning ensures the statutory role of mental health and/or learning disabilities nurses is recognised and protected and that the healthcare professionals employed by them understand the legal requirements for detention and restraint. 

We encourage all RCN members to challenge incidents where the substitution of mental health and learning disabilities nurses within inpatient services is being planned or has occurred.