A requested post, after this week receiving several queries at work and on Twitter about nurses’ and doctors’ “holding powers” under the Mental Health Act. Officers and patients have been asking what, if anything, various doctors and nurses can do to detain someone if they suspect a mental disorder and fear someone may come to harm if they leave a hospital area.
Whenever a patient is admitted to hospital as an inpatient, the Mental Health Act affords legal authorities to all doctors and to just some nurses, to “hold” patients for full MHA assessment, if required. This post covers just some of the issues arising from these powers, for officers to bear in mind as they interact with various situations. The queries that prompt this post seemed to assume that anyone who is “in hospital” can be detained under the MHA, if it seems required. As with a lot of things, this is not necessarily true, and is perhaps inevitable when we operate with legislation which essentially dates from the time of Ration Books and Buddy Holly records.
The holding powers concerned are available under s5(2) to registered medical practitioners in charge of that patient’s care; and under s5(4) to nurses “of the prescribed class”.
The holding powers are only of application to patients who are in-patients in hospital, which means that these authorities cannot be used for people who attend outpatient clinics or those in Accident & Emergency departments. A&E patients are not admitted as “inpatients” for the purposes of the MHA. If an outpatient or A&E patient who had attended for treatment were then admitted to a ward for further care, s5 MHA powers come into play from that point of admission.
- It is Chapter 12 of the Mental Health Act Code of Practice which covers holding powers.
- Chapter 2 of the Mental Health Act Reference Guide which covers holding powers.
Finally, it is often found that the potential for holding powers to be applied is considered on admission and reviewed whilst a voluntary patient remains in hospital. In some voluntary cases, there would be no question: any attempt to leave and holding powers should be applied and in other cases the opposite is true, although both presumptions are reviewed regularly to reflect a change in a patient’s condition. It is worth remembering the duty of care that is owed to voluntary patients, especially those at risk of suicide, as shown in the case of Melanie Rabone. Whilst that was not about holding powers per se, it was about allowing of patients to leave hospital when risks were clearly evident. One can see legal parallels to some decisions not to apply a holding power.
DOCTORS HOLDING POWERS – SECTION 5(2) MHA
Any registered medical practitioner may exercise powers under s5(2) and whilst this will mostly be psychiatrists in mental health units, it is sometimes seen that they are exercised in general hospitals on medical or surgical wards. There is no requirement that the RMP in question be “section 12 approved” – this means “having special experience in the diagnosis or treatment of mental disorder.”
For example, there was a case in my area some months ago where a patient had been admitted to a general hospital ward with medical problems and after a day or so tried to leave. The doctor in the case knew of the patient’s serious mental health history and of recent threats to take his own life but did not apply s5(2) MHA and call security (or the police). The patient was allowed to leave, prompting a fairly urgent missing persons enquiry for the police. When the patient was reported missing and we asked for full details, we were told of the various medical problems in the person’s case history that would cause him to be regarded as an urgent, high-risk missing person. We subsequently made safeguarding representations about the holding power not being used when it clearly could have been. The safeguarding lead for the hospital subsequently agreed.
Once applied, a doctor’s holding power entitles the authorities to hold the patient for up to 72hrs in order for a Mental Health Act assessment to be undertaken. The AMHP and two doctors will then decide whether to detain the patient under s2 or s3, if at all, just as they would do an assessment in police custody or in the community.
Incidentally, in case you hadn’t thought of it: when a person is ‘sectioned’, they can be sectioned to a non-psychiatric unit if there are other medical issues in play and a patient’s MHA detention can then be transferred, under section 19, to a psychiatric unit once medical priorities are sorted.
NURSES HOLDING POWERS – SECTION 5(4) MHA
Doctors are not always immediately available – certainly in some psychiatric units the doctor on-call overnight is not necessarily required to reside at the hospital. Several on-call arrangements in mental health units merely require the doctor to be within a certain travelling time of the hospital, either 30 or 60 minutes. So nurses may have to make detention decisions.
These powers cannot be exercised by all nurses: only a nurse “of the prescribed class” may do so and this in practice means more senior mental health or learning disabilities nurses, like ward managers or deputies. Legally speaking, howeve – any registered mental health or learning disabilities nurse can use it. (See para 2.81 of the Reference Guide for more detail if you need it.) It is for this reason, that nurses on the general hospital wards mentioned above could not have detained the patient until the doctor got there.
Such “prescribed” nurses may detain under s5(4) if the relevant criteria are met and this authority will last for six hours or until either a doctor decides whether to hold the patient under s5(2), above or until an MHA assessment determines whether or not to detain under s2 or s3. So you can imagine the situation where a voluntary patient decides to leave, a nurse thinks the MHA is appropriate so applies s5(4) and then within six hours a doctor thinks s5(2) is appropriate so sends a report to hospital managers. Within three days, an MHA assessment occurs which may detain the patient under section 2 or section 3.
It is generally accepted that the geographical exercise of some limits to the holding powers extends to the edge of trust property. So these powers can be exercised by patients who have, for example, stepped outside to a smoking area or gone for a walk in the hospital grounds, but once over the main road, most mental health trust’s policies direct that the police be called and either s136 or s18 be used – for voluntary and detained patients, respectively – because holding powers no longer apply.
I want to tell a short story which intends to knock down the theory that nurses pause at the edge of hospital property and refuse to go any further. It occured about six years ago in Birmingham and involved a nurse following a patient to the bus-stop a few hundred yards from the hospital, trying to persuade the patient to return whilst they waited for the “number 11” but failing to do so. So the nurse got on the same bus, called the police and talked my officers in to where the bus was. The patient was re-detained under s18 and returned to hospital with nurse in the police car. Job done.
ABSENT WITHOUT LEAVE
Where a patient who has been detained under either of these powers then absents themselves from hospital, they are AWOL for the purposes of s18 MHA and may be re-detained by an AMHP, a constable or anyone authorised in writing by the hospital.
There is no power of entry: if entry needs to be forced to a premises in order to re-detain a patient, then a warrant under s135(2) is required.
There are timescales to bear in mind –
- s5(2) patient – may be retaken for up to 72hrs after the doctor made the decision to detain.
- s5(4) patient – may be retaken for up to 6hrs after the nurse made the decision to detain.
Thereafter, officers may consider s136 if the patient is found in a public place or inform the duty AMHP of the patient’s whereabouts if found in a private dwelling.
ACCIDENT & EMERGENCY
It should be clear from the above that where the police are called to A&E because of a difficult situation that may benefit from being subject to a legal framework, A&E nurses and doctors are very constrained in what they can do. These are the scenarios where officers are sometimes asked to implement section 136 MHA in the A&E department, either with a view to MHA assessment occuring there and officers supporting it; OR, occasionally, the patient being remove to the preferred place of safety for your area.
Neither s5(2) or s5(4) are of application to this situation and whilst it may feel counter-intuitive to do so, there will be some scenarios where police implementation of s136 will be quite appropriate. The fallout from various inquiries into untoward events shows that it is important that you understand the kinds of circumstances to which this distinction applies.
Update on 01st April 2015 – since writing this article, a new Code of Practice has come into effect in England. It doesn’t substantially alter the post but certain reference numbers have changed. My summary post about the new Code of Practice (2015) is here, the new Reference Guide is here and the full document is here. The Code of Practice (Wales) remains unchanged.
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