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
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
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 removed 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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All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2013
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
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21 thoughts on “Section 5 MHA – Holding Powers”
I had a brief panic about transferring under Section 5(2), having checked can I point you towards http://www.cqc.org.uk/sites/default/files/media/documents/20111118_leave_of_absence_and_transfer_under_the_mental_health_act_1983_updated.pdf
Very helpful, many thanks for taking the time to post this info. Let’s hope that the Dr I quote the act, section and powers to has a sense of humor. I shall look forward to pointing these provisions out the next time I lock horns with someone at the mh unit.
Why then is this power not used? Often I hear the phrase ” if they were to try to leave they would have been sectioned” said by medical staff. (after misper has walked out). Do all hospitals have a safeguarding lead to complain to about this ?
They will do – or just via the ward manager would do the trick. If they try to leave they would have been sectioned means the DR (or relevant nurse in a psych unit) could apply these holding powers.
Worth reminding every time about the potential for a failure to apply these powers to contribute to liabilities if the patient comes to harm: look up the “Rabone and Savage” cases on this blog.
what kind of ‘reasonable force’ can police do to search someone who they decided to detain under section 136 who refuses to be searched. do they like floor you, handcuff you, put there full weight on you so you cant move or something else?
The police allowed to use “reaonsable force” in detaining and searching someone when they’ve been held under s136. Exactly how it was done would depend on the context and they cannot “floor you, handcuff you” without justification. Officers would not (or should not) put full weight on someone because this can be extremely risky. However, if someone is resisting detention or searching to such a degree, it is within training and guidelines that people detained under s136 can be handcuffed, taken to the floor and various grips and techniques used to keep them there whilst they are searched. Hope this helps?
Yeah i no now to fight the fudge outta thm n watnot – im gonna go to chapel allerton probs covered in B n watnot – im in a very bad place but then again hv been in this place for fudge nos how long – i need help – outside help – something the fudging care home im at cant get to fudging grips wit lolz
I think that if someone would be sectioned if they leave, they should not be a voluntary patient, they should be properly sectioned so that the protections and rights of the MHA apply. For example I was taken off a section as long as I agreed to stay, but here then not being sectioned means you don’t have access to advocacy, even though I was still being coerced just as much as when I was properly sectioned, and I did not have the same rights to appeal, review, etc. It is like the Bournewood Gap.
I don’t necessarily disagree with you – not at all. But that it what the law states currently. It’s a valid ethical point which consumes commentators a lot.
People suffer until they get it right. Instead of arguing on the best way, why don’t they figure out a way to work it out so they people that need it, can get it!
In reference to the inpatient MH sections in an acute medical hospital – a patient under a section 5 (2) leaves a ward with the intention to leave the hospital, security are called and asked to physically intervene and remove the patient back to their ward/bed.
Would the security need to wait until they were crossing the boundary of the trust property?
Also what is the legal status of the security using force to keep the sectioned patient within the hospital would they need the written permission of the trust?
Security would not necessarily need to wait until they’re over the boundary, indeed many hospitals argue that their jurisdication ends at the boundary and it becomes a police matter. (Which isn’t actually correct!) But to answer your first question, nothing prevents security acting (if the hospital has security, many don’t) but they probably would need that clarified in writing by hospital managers, especially required if they were ever going to be in a scenario whereby they were asked to legally detain people under s18 MHA having become AWOL. In my experience, most psychiatric units don’t have security who fulfill patient detention functions and they wouldn’t get involved. Different for medium or high secure hospitals.
Thanks for the reply. I work within security (under contract) to the nhs at a acute hospital where we are often asked to prevent those under Section 5 MHA or those under a DOL safeguarding order from leaving often requiring physical intervention to prevent doing so. After reading through a lot of the links on your website there is nothing in relation to security performing such duties.
Obviously calling the police everytime would be a strain on their resources but I was just trying to understand the legality behind the process.
Hi Michael – love this blog.
Specifically with reference to Emergency Departments, which Sections of the MHA can a patient be involuntary detained under?
I’m confused by a Sectioning under 3 which I’d have thought they needed to be an in-patient?
Can you point me in the direction of any useful resources/reading material.
i also work as security within the nhs and we to are always being told to drag patients back or stop them from leaving site as their on a 5.2 but we were always under asumption that a section 5.2 is a voluntary patient so in that case has rights to leave if they wish if we are not correct would love to no
Once 5(2) MHA has been properly instigated, the patient is not voluntary, they are legally held until such time as a MHA assessment is organised to determine whether the Act will be fully impelemented – usually either s2 or s3. Voluntary patients do have a right to leave, but 5(2) is one of several things that removes such rights. I can’t be used on A&E patients; only on those who are formally admitted as inpatients. Security should bear in mind that 5(2) doesn’t take effect until the DR instigating it has completed their written report – which usually only takes a minute – and either handed it to hospital managers or placed it in the postal system. This sounds very weird, but I specifically checked it after an incident in a Birmingham hospital involving security officers.
Advice please.Psychiatric patient presents to ED with significant self harm requiring semi urgent surgery. Within next 12 hours or so. Has does not have capacity and wants to leave NOW !
He is not 136 able as he needs surgery. Psychiatry will not touch him until his surgery complete. I cannot do a section 5(2) as he is in ED. How do I get him to a ward physically so as to do the necessary section if he resists. Can I chemically restrain him ?
The only thing wrong in the premise of your question is that he is “not 136 able” – if he has a mental disorder and is in immediate need of care or control, then s136 can be used to take him to a place of safety and this action can be instigated in A&E. That said, once it’s done, unless the action is literally life-threatening and there is no time to wait, the MCA is of no immediate application. However, you can go to the Court of Protection 24hrs a day (phone number by which to do so is on the Court’s website) in order to seek an order to do whatever you think is in the patient’s best interests and if you have 12hrs or so to play with, taking an hour to get your Trust solicitor on the phone and make an application is reasonable. So, contact the police and request consideration of s136, whilst also asking your legal people to make an urgent application to the Court for an order covering your proposal. If the semi-urgent surgery is done within a day, the s136 means there is still two day to play with in terms of assessing his mental disorder.
Can you please advice, pt under sec 5(2) , on the ward , made signifiacnts cuts to herself n now in need of being taken to a&e. Will sec5(2) becomes invalid once she is in a&e? And what could be done if she tries to leave a&e?
The section 5(2) is in place for 72 hours. The patient would be transferred under section on a 17 leave or section 19 depending on the status of the receiving hospital
I have experience going after people who leave whilst an informal patient. The advice has always been that in the absence of statutory powers, use the Common Law Doctrine of Necessity to prevent harm and of course using reasonable force if necessary e.g. preventing someone form jumping off a bridge.
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